Exhibit 10.4
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted text has been has been marked with a
triple asterisk ("***") and has been filed separately with the Securities
and Exchange Commission.
AIRBUS A330/A340 PURCHASE AGREEMENT
Dated as of November 24, 1998
between
AVSA, S.A.R.L.,
Seller
and
US Airways Group, Inc.,
Buyer
C O N T E N T S
CLAUSES TITLE
0 PURCHASE AGREEMENT
1 DEFINITIONS
2 SALE AND PURCHASE
3 CHANGES
4 PRICE
5 PRICE REVISION
6 PAYMENT TERMS
7 PLANT REPRESENTATIVES - INSPECTION
8 BUYER'S ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY
11 INEXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
13 PATENT INDEMNITY
14 TECHNICAL PUBLICATIONS
15 CUSTOMER ASSISTANCE
16 TRAINING AND TRAINING AIDS
17 VENDORS' PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT AND DATA
19 ASSIGNMENT
20 DATA RETRIEVAL
21 TERMINATION FOR CERTAIN EVENTS
22 MISCELLANEOUS PROVISIONS
EXHIBITS TITLE
EXHIBIT "A-1" A330-200 AIRCRAFT SPECIFICATION
EXHIBIT "A-2" A330-300 AIRCRAFT SPECIFICATION
EXHIBIT "A-3" A340-200 AIRCRAFT SPECIFICATION
EXHIBIT "A-4" A340-300 AIRCRAFT SPECIFICATION
EXHIBIT "B" [INTENTIONALLY LEFT BLANK]
EXHIBIT "C" SCN FORM
EXHIBIT "D" SELLER SERVICE LIFE POLICY
EXHIBIT "E" CERTIFICATE OF ACCEPTANCE
EXHIBIT "F" TECHNICAL PUBLICATIONS
EXHIBIT "G" AIRFRAME PRICE REVISION FORMULA
EXHIBIT "H-1" XXXXX & XXXXXXX XXXXX REVISION FORMULA FOR
A330-200 AND A330-300 AIRCRAFT
EXHIBIT "H-2" CFM INTERNATIONAL PRICE REVISION FORMULA FOR
A340-200 AND A340-300 AIRCRAFT
P U R C H A S E A G R E E M E N T
This agreement is made this 24 day of November 1998
between
AVSA, 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
(hereinafter referred to as the "Buyer")
WHEREAS,
a) the Buyer wishes to purchase and the Seller is willing to sell up
to thirty (30) Airbus Industrie aircraft, upon the terms and
conditions herein provided; and
b) the Seller is a sales subsidiary of Airbus Industrie, G.I.E., and
will purchase the A330 and A340 model aircraft from Airbus
Industrie, G.I.E., for resale to the Buyer.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1 - DEFINITIONS
For all purposes of this agreement, except as otherwise
expressly provided or unless the context otherwise
requires, the following terms will have the following
meanings:
A319/A320/A321 Agreement - the A319/A320/A321 Purchase
Agreement originally executed as of October 31, 1997,
including all exhibits, appendices and letter agreements
attached or otherwise incorporated therein and all SCNs,
as the same has been and may in the future be amended or
modified (whether by formal amendment, letter,
correspondence or otherwise in writing) from time to
time, and in effect from time to time.
A330 Aircraft - any or all A330-200 Aircraft and A330-300
Aircraft.
A330-200 Aircraft - any or all of the Firm A330-200
Aircraft, Reconfirmable A330-200 Aircraft and Additional
Aircraft that the Buyer selects as A330-200 aircraft and
Aircraft that the Buyer converts into 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.
A330-300 Aircraft - any or all of the Firm A330-300
Aircraft, Reconfirmable A330-300 Aircraft and Additional
Aircraft that the Buyer selects as A330-300 aircraft and
Aircraft that the Buyer converts into A330-300 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.
A340 Aircraft - any or all A340-200 Aircraft and A340-300
Aircraft.
A340-200 Aircraft - any or all of the Firm A340-200
Aircraft, Reconfirmable A340-200 Aircraft and Additional
Aircraft that the Buyer selects as A340-200 aircraft and
Aircraft that the Buyer converts into A340-200 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.
A340-300 Aircraft - any or all of the Firm A340-300
Aircraft, Reconfirmable A340-300 Aircraft and Additional
Aircraft that the Buyer selects as A340-300 aircraft and
Aircraft that the Buyer converts into A340-300 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.
X000-000 Xxxxxxxx - any A330-200 Aircraft, excluding the
Propulsion Systems therefor.
X000-000 Xxxxxxxx - any A330-300 Aircraft, excluding the
Propulsion Systems therefor.
X000-000 Xxxxxxxx - any A340-200 Aircraft, excluding the
Propulsion Systems therefor.
X000-000 Xxxxxxxx - any A340-300 Aircraft, excluding the
Propulsion Systems therefor.
Additional Aircraft - up to sixteen (16) A330-300,
A330-200, A340-300 and/or A340-200 model aircraft other
than Firm Aircraft and Reconfirmable Aircraft that may 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.
Affiliate - with respect to any person or entity, any
other person or entity directly or indirectly
controlling, controlled by or under common control with
such person or entity, not including any of the
Associated Contractors.
Agreement - this Airbus A330/A340 Purchase Agreement,
including all exhibits, appendices and letter agreements
attached or otherwise incorporated herein and all SCNs,
as the same may be amended or modified (whether by formal
amendment, letter, correspondence or otherwise in
writing) from time to time, and in effect from time to
time.
Aircraft - any or all of the A330 Aircraft and A340
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.
Airframe - any Aircraft, excluding the Propulsion Systems
therefor.
Airframe Price Revision Formula - the formula set forth
in Exhibit "G" of this Agreement.
ASC - Airbus Service Company, Inc., a corporation
organized and existing under the laws of the State of
Delaware, having its registered office located at 000 Xxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or any
successor thereto.
Associated Contractors - collectively, the members and,
for certain purposes, subcontractors of the Manufacturer
from time to time, which members presently are:
(1) AEROSPATIALE, SOCIETE NATIONALE INDUSTRIELLE
("Aerospatiale"), whose principal office is at
00, Xxxxxxxxx xx Xxxxxxxxxxx 00000 Xxxxx Xxxxxx
(2) BRITISH AEROSPACE (OPERATIONS) LTD, whose
principal office is at Warwick House
PO Box 87
Farnborough Aerospace Centre
Xxxxxxxxxxx
Xxxxx XX00 0XX
Xxxxxxx
(3) CONSTRUCCIONES AERONAUTICAS, S.A., whose
principal office is at 404 Xxxxxxx xx Xxxxxx
00000 Xxxxxx Xxxxx
(4) DAIMLER-BENZ AEROSPACE AIRBUS, GmbH, whose principal
office is at
Kreetslag 10
Xxxxxxxx 00 00 00
00000 Xxxxxxx
Xxxxxxx
ATA Specification 100 - the specification issued by the
Air Transport Association of America relating to
manufacturers' technical data.
ATA Specification 101 - the specification issued by the
Air Transport Association of America relating to ground
equipment technical data.
ATA Specification 102 - the specification issued by the
Air Transport Association of America relating to software
programs.
ATA Specification 200 - the specification issued by the
Air Transport Association of America relating to
integrated data processing.
ATA Specification 300 - the specification issued by the
Air Transport Association of America relating to the
packaging of spare parts shipments.
ATA Specification 2000 - the specification issued by the
Air Transport Association of America relating to an
industry-wide communication system linking suppliers and
users for the purposes of spares provisioning,
purchasing, order administration, invoicing and
information or data exchange.
ATA Specification 2100 - the specification issued by the
Air Transport Association of America relating to the
standards for the presentation of technical information
prepared as digital media (magnetic tape or CD ROM).
Base Price - for any Aircraft, Airframe or Propulsion
Systems, as defined in Subclause 4.1 of this Agreement.
Buyer Furnished Equipment - for any Aircraft, all the
items of equipment that will be furnished by the Buyer
and installed in the Aircraft by the Seller, as defined
in the Specification.
Commercial Constraints - means delivery positions that
are not available solely because they are under offer to
another customer or because they would require
unreasonably expensive modifications to meet the
Specification.
Courseware - computer-based-training programs developed
and owned or licensed by the Seller in conjunction with
the Buyer's training programs.
Customer Originated Changes - as defined in Subclause
14.5.3 of this Agreement.
Deposit - as defined in Subclause 6.2.4 of this
Agreement.
Development Changes - as defined in Subclause 3.2 of this
Agreement.
DGAC - the Direction Generale de l'Aviation Civile of
France, or any successor agency thereto.
Excusable Delay - as defined in Subclause 10.1 of this
Agreement.
FAA - the U.S. Federal Aviation Administration, or any
successor agency thereto.
Failure - as defined in Subclause 12.2 of this Agreement.
Final Contract Price - as defined in Subclause 4.2 of
this Agreement.
Firm A330-200 Aircraft - any or all of the Firm A330-300
Aircraft that the Buyer converts into 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.
Firm A330-300 Aircraft - any or all of the seven (7) firm
A330-300 aircraft for which the delivery schedule is set
forth in Subclause 9.1.1 hereof 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.
Firm A340-200 Aircraft - any or all of the Firm A330-300
Aircraft that the Buyer converts into A340-200 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.
Firm A340-300 Aircraft - any or all of the Firm A330-300
Aircraft that the Buyer converts into A340-300 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.
Firm Aircraft - any or all of the Firm A330-200 Aircraft,
Firm A330-300 Aircraft, Firm A340-200 and Firm A340-300
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.
Industrial Constraints - means delivery positions that
are not physically available, because production capacity
limits have been reached.
Inexcusable Delay - as defined in Subclause 11.1 of this
Agreement.
In-house Warranty - as referred to in Subclause 12.1.7 of
this Agreement.
In-house Warranty Labor Rate - as defined in Subclause
12.1.7(v) of this Agreement.
Interface Problem - as defined in Subclause 12.4.1 of
this Agreement.
Item - as defined in Subclause 12.2 of this Agreement.
LIBOR - for each stated interest period, the rate for
deposits in US dollars being quoted to prime banks in the
London Interbank Market for such an interest period, at
11:00 a.m., London time, on the day that is two (2) days
(other than a Saturday, Sunday or a day that is a legal
holiday or a day on which banking institutions are
authorized to close in the City of New York, New York,
London, England, or Paris, France) before the first day
of an interest period. Such rate may be displayed on the
Reuters Screen LIBO Page, the Bloomberg LIBOR screen, or
in the Wall Street Journal or The Financial Times. The
Buyer and Seller will consult these sources and agree on
the rate. In the event that agreement cannot be reached,
if at least two (2) such offered rates appear on the
Reuters Screen LIBO Page, the rate for that interest
period will be the arithmetic mean of such offered rates
rounded to the nearest basis point (0.5 rounds to 1),
otherwise the rate for that interest period will be
"LIBOR" as quoted by National Westminster Bank, plc.
"Reuters Screen LIBO Page" means the display designated
as page "LIBO" on the Reuters Monitor Money Rates Service
(or any successor to such page or service).
Manufacturer - Airbus Industrie, a "Groupement d'Interet
Economique" established under "Ordonnance" No. 67-821
dated September 23, 1967, of the Republic of France.
Material - "Material" will comprise: (a) Seller Parts, it
being expressly understood that Seller Parts will not
include parts manufactured pursuant to a Parts
Manufacturing Authority, (b) Vendor Parts classified as
rotable line replacement units, (c) Vendor Parts
classified as expendable line maintenance parts, (d)
ground support equipment (GSE) and special-to-type tools,
(e) hardware and standard material, and (f) consumables
and raw material.
Material Breach - as defined in Subclause 21.1 of this
Agreement.
Predelivery Payment - any payment made against the Final
Contract Price of an Aircraft, the expected schedule for
which is set forth in Subclause 6.2.2 of this Agreement.
Predelivery Payment Reference Price - as defined in
Subclause 6.2.3 of this Agreement.
Product Support Agreements - as referred to in Subclause
17.1.1 of this Agreement.
Propulsion Systems - the (i) two (2) powerplants
manufactured by Xxxxx & Whitney, to be installed on an
A330 Aircraft at delivery, or (ii) four (4) powerplants
manufactured by CFM International, to be installed on an
A340 Aircraft at delivery, each composed of (x) the
powerplant (as such term is defined in Chapters 70-80 of
ATA Specification 100 (Revision 21), but limited to the
equipment, components, parts and accessories included in
the powerplant, as so defined) and (y) thrust reversers
and nacelles that have been sold to the Manufacturer by
Xxxxx & Xxxxxxx or CFM International, as applicable.
Qualifying Affiliate - as defined in Subclause 19.5 of
this Agreement.
Reconfirmable A330-200 Aircraft - any or all of the
Reconfirmable A330-300 Aircraft that the Buyer converts
into 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.
Reconfirmable A330-300 Aircraft - any or all of the seven
(7) reconfirmable A330-300 aircraft for which the
delivery schedule is set forth in Subclause 9.1.1 hereof
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.
Reconfirmable A340-200 Aircraft - any or all of the
Reconfirmable A330-300 Aircraft that the Buyer converts
into A340-200 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.
Reconfirmable A340-300 Aircraft - any or all of the
Reconfirmable A330-300 Aircraft that the Buyer converts
into A340-300 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.
Reconfirmable Aircraft - any or all of the Reconfirmable
A330-200 Aircraft, Reconfirmable A330-300 Aircraft,
Reconfirmable A340-200 Aircraft and Reconfirmable
A340-300 Aircraft that may 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.
RFC - as defined in Subclause 3.3 of this Agreement.
SCN - as defined in Subclause 3.1 of this Agreement.
Seller Parts - industrial proprietary components,
equipment, accessories or parts of the Manufacturer
manufactured to the detailed design of the Manufacturer
or a subcontractor of it and bearing official part
numbers of the Manufacturer or material for which the
Seller has exclusive sales rights in the United States of
America.
Service Life Policy - as referred to in Subclause 12.2 of
this Agreement.
Specifications - as defined in Subclause 2.2 of this
Agreement.
Standard Specifications - as defined in Subclause 2.2 of
this Agreement.
Technical Publications - as defined in Subclause 14.1 of
this Agreement.
Training - as defined in Subclause 16.1 of this
Agreement.
Training Conference - as defined in Subclause 16.2.1 of
this Agreement.
Vendor - each manufacturer of Vendor Parts.
Vendor Component - as defined in Subclause 12.4.3 of this
Agreement.
Vendor Parts - any equipment, component, accessory, or
part installed in or intended to be installed in an
Aircraft, other than Warranted Parts, Propulsion Systems
and Buyer Furnished Equipment.
Warranted Part - as defined in Subclause 12.1.1 of this
Agreement.
Warranty Claim - as defined in Subclause 12.1.6(iv) of
this Agreement.
Working Day - with respect to any action to be taken
hereunder, a day other than a Saturday, Sunday or other
day designated as a legal holiday in the jurisdiction in
which such action is required to be taken, provided that
for purposes of determining when any notice or election,
any payment or any delivery of any Aircraft is required
to be made, "Working Days" will mean any day other than a
Saturday, Sunday or other day designated as a legal
holiday or on which banks are permitted to be closed in
(a) Toulouse, France, (b) New York, New York or (c) any
other location where applicable United States federal
offices (such as those of the FAA) are located.
The terms "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement, and not
a particular Clause thereof.
The term "including" as used in this Agreement means
"including, without limitation," unless otherwise
specified or unless the context otherwise requires.
Technical and trade items not otherwise defined herein
will have the meanings assigned to them as generally
accepted in the aircraft manufacturing industry.
2 - SALE AND PURCHASE
2.1 General
The Seller will cause to be manufactured and will sell
and deliver, and the Buyer will buy and take delivery of,
the Aircraft subject to the terms and conditions
contained in this Agreement.
2.2 Specification Documents
Each Aircraft will be manufactured, and when delivered
will be in accordance with the Specification for such
Aircraft:
(i) in respect of the A330-200 Aircraft, Standard
Specification Document No. G.000.02000, Issue 3,
dated October 15, 1996, with an MTOW of 230
tonnes (the "A330-200 Standard Specification"),
(ii) in respect of A330-300 Aircraft, Standard
Specification Document No. G.000.03000, Issue 6,
dated October 15, 1996, with an MTOW of 230
tonnes (the "A330-300 Standard Specification"),
(iii) in respect of A340-200 Aircraft, Standard
Specification Document No. F.000.02000, Issue 6,
dated January 15, 1997, with an MTOW of 275
tonnes (the "A340-200 Standard Specification"),
(iv) in respect of A340-300 Aircraft, Standard
Specification, Document No. F.000.03000 Issue 6,
dated January 15, 1997, with an MTOW of 275
tonnes (the "A340-300 Standard Specification").
Copies of the A330-200 Standard Specification, A330-300
Standard Specification, A340-200 Standard Specification
and A340-300 Standard Specification are annexed hereto
as, respectively, Exhibit "A-1," Exhibit "A-2," Exhibit
"A-3" and Exhibit "A-4" to this Agreement (collectively,
the "Standard Specifications"). The Standard
Specifications, as amended by the change orders set forth
in Exhibit "B" hereto are hereinafter referred to as the
"Specifications." The Specifications may be further
modified from time to time pursuant to the provisions of
Clause 3 below.
2.3 Certification
Each Aircraft will be delivered to the Buyer with the
Certificate of Airworthiness for Export issued by the
DGAC for the Aircraft, and in a condition enabling the
Buyer (or an eligible person under then applicable law)
to immediately obtain at the time of delivery a US
Standard Airworthiness Certificate issued pursuant to
Part 21 of the US Federal Aviation Regulations, and ***.
After transfer of title to the Aircraft will have
occurred, and once the registration process with the FAA
will have taken place, the Buyer will present to the
DGAC, as the representative of the FAA, (i) the
Certificate of Airworthiness for Export and (ii) the
temporary registration certificate issued by the FAA,
with respect to the Aircraft. The DGAC representative
acting on behalf of the FAA will then immediately issue
to the Buyer the US Standard Airworthiness Certificate
for the Aircraft.
In addition, the Seller will assist the Buyer in
obtaining at time of delivery of the first A330 Aircraft
and first A340 Aircraft ***.
The Buyer will be responsible for the United States
registration of the Aircraft. The Seller will have no
obligation, whether before, at or after delivery of any
Aircraft, to make any alterations to such Aircraft to
enable such Aircraft to meet FAA requirements for
specific operation on routes unique to the Buyer ***.
Except as set forth in this Subclause 2.3, the Seller
will not be required to obtain any other certificate or
approval with respect to the Aircraft.
3 - CHANGES
3.1 Specification Change Notices
The Specifications may be amended from time to time by a
Specification Change Notice, a written agreement between
the parties (each such Specification Change Notice being
herein called an "SCN" and being substantially in the
form of Exhibit "C" hereto). Each SCN will set forth in
detail the particular changes to be made in the
Specifications, and the effect, if any, of such changes
on design, performance, weight, balance, time of
delivery, Buyer Furnished Equipment and price (in base
year dollars and, for information purposes only, in then
current year dollars) of each Aircraft affected thereby
and interchangeability or replaceability of parts. SCNs
will not be binding on either party until signed by
persons duly authorized in writing by the Buyer and the
Seller, but upon being so signed will constitute
amendments to this Agreement. All SCNs will be signed on
behalf of the Buyer by an officer in its finance
department and an officer in flight operations or
maintenance, or alternatively may be signed by the
Buyer's chief executive officer or president.
3.2 Development Changes
*** the Specifications may also be revised by the Seller
without an SCN or the Buyer's consent solely to
incorporate Manufacturer-decided changes that are deemed
necessary or useful to correct defects, improve the
Aircraft or its process of manufacture, prevent delay, or
ensure compliance with this Agreement and that do not
increase the price or adversely affect the delivery,
overall dimensions, weight, operational or maintenance
requirements or performance of the Aircraft or adversely
(i) change the interchangeability or replaceability
requirements of the Specifications with respect to parts
or (ii) *** (hereinafter called "Development
Changes").***
3.3 Requests and Approvals
In the event that the Buyer files a Request for Change
("RFC") with the Seller and the RFC does not subsequently
become an SCN for any reason, such RFC will be cancelled
without charge to the Buyer. Upon receipt of any request
for a proposed change, the Seller will consider such
request in good faith and will respond within ten (10)
Working Days with (i) if possible, all appropriate
information, including, a written estimated range of the
cost thereof, the impact on the delivery dates of the
applicable Aircraft and any certification requirements,
or (ii) if (i) is not possible, with a date when the
Seller will provide the Buyer with the information in
(i). In the event that the Buyer requests the Seller in
writing to incorporate a proposed change (excluding
Development Changes) in an Aircraft and the Seller agrees
to such request and incorporates such change, but the
change is not subsequently made the subject of an SCN for
any reason (other than the Seller's unreasonable refusal
to sign the SCN or otherwise acting in bad faith), the
Buyer will pay to the Seller the actual direct cost of
design and other work resulting from such request and
incurred by the Seller ***. In the event that the Buyer
requests the Seller in writing to proceed with a proposed
change before any requisite approval of DGAC and FAA has
been obtained and subsequently such DGAC or FAA approval
is not obtained, any SCN which will have been executed in
connection with such proposed change will be deemed
canceled. ***
3.4 Specification Changes Before Delivery
If, pursuant to the promulgation, adoption, issuance,
change or interpretation of any applicable law or
regulation, any change in the Specifications has to be
made before delivery of any Aircraft to enable ***. For
each such change, the parties will sign an SCN specifying
the effect, if any, of such change on design,
performance, weight, balance, time of delivery, Buyer
Furnished Equipment and price of each Aircraft affected
thereby and interchangeability or replaceability of
parts. If the Seller anticipates that the scheduled
delivery of any Aircraft will be postponed by reason of
such change, the delivery date of such Aircraft as
provided in Subclause 9.1 will be extended to the extent
required by reason of such change, ***.
The Seller will use all reasonable efforts to ensure that
each Aircraft that is the subject of such postponement is
"ready for delivery" without discrimination against the
Aircraft.
***
The cost of the changes applicable to Propulsion Systems,
will be borne by the Buyer or the manufacturer thereof in
accordance with such arrangements as may be made
separately between the Buyer and the manufacturer of the
Propulsion Systems.
3.5 Specification Changes After Delivery
Subclause 3.4 will not require the Seller to make any
changes or modifications to or to make any payments or
take any other action with respect to any Aircraft
delivered to the Buyer before any law or regulation
referred to in Subclause 3.4 is to be complied with. Any
such changes or modifications made to an Aircraft after
its delivery to the Buyer will be at the Buyer's expense,
except as otherwise agreed between the Buyer and the
Seller.
3.6 Specification Evolution
The Seller will keep the Buyer advised of any evolution
in the design of the A330/A340 family of aircraft and of
any new relevant option that becomes available with
respect to the Aircraft.
4 - PRICE
4.1 Base Price of the Aircraft
The "Base Price" of each Aircraft is the sum of:
(i) the Base Price of the Airframe, and
(ii) the Base Price of the Propulsion Systems.
4.1.1 Base Price of the Airframe
4.1.1.1 X000-000 Xxxxxxxx
The Base Price of the X000-000 Xxxxxxxx will be the sum
of the Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard A330-200
Airframe, as defined in the A330-200 Standard
Specification set forth in Exhibit "A-1" hereto
(excluding Buyer Furnished Equipment, Propulsion
Systems and SCNs), at delivery conditions
prevailing in January 1999, which is:
US $***
(US dollars-***), and
(ii) a budgetary Base Price for SCNs to be mutually
agreed upon, at delivery conditions prevailing
in January 1999, which is:
US $***
(US dollars-***).
4.1.1.2 A330-300 Airframe
The Base Price of the X000-000 Xxxxxxxx will be the sum
of the Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard A330-300
Airframe, as defined in the A330-300 Standard
Specification set forth in Exhibit "A-2" hereto
(excluding Buyer Furnished Equipment, Propulsion
Systems and SCNs), at delivery conditions
prevailing in January 1999, which is:
US $***
(US dollars-***), and
(ii) a budgetary Base Price for SCNs to be mutually
agreed upon, at delivery conditions prevailing
in January 1999, which is:
US $***
(US dollars-***).
4.1.1.3 A340-200 Airframe
The Base Price of the X000-000 Xxxxxxxx will be the sum
of the Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard A340-200
Airframe, as defined in the A340-200 Standard
Specification set forth in Exhibit "A-3" hereto
(excluding Buyer Furnished Equipment, Propulsion
Systems and SCNs), at delivery conditions
prevailing in January 1999, which is:
US $***
(US dollars-***), and
(ii) a budgetary Base Price for SCNs to be mutually
agreed upon, at delivery conditions prevailing
in January 1999, which is:
US $***
(US dollars-***).
4.1.1.4 A340-300 Airframe
The Base Price of the X000-000 Xxxxxxxx will be the sum
of the Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard A340-300
Airframe, as defined in the A340-300 Standard
Specification set forth in Exhibit "A-4" hereto
(excluding Buyer Furnished Equipment, Propulsion
Systems and SCNs), at delivery conditions
prevailing in January 1999, which is:
US $***
(US dollars-***), and
(ii) a budgetary Base Price for SCNs to be mutually
agreed upon, at delivery conditions prevailing
in January 1999, which is:
US $***
(US dollars-***).
4.1.1.5 The Base Price of the Airframe of each Aircraft will be
revised to the actual delivery date of such Aircraft in
accordance with the Airframe Price Revision Formula.
4.1.2 Base Price of the Propulsion Systems
4.1.2.1 A330 Aircraft: Xxxxx & Xxxxxxx XX 4168A Propulsion Systems
The Base Price of a set of two (2) PW 4168A Propulsion
Systems together with the related aft pylon fairing, at
delivery conditions prevailing in January 1999, is:
US $***
(US dollars-***).
Said Base Price has been calculated with reference to the
Reference Price indicated by Xxxxx & Whitney of US $***
and in accordance with economic conditions prevailing in
***.
Said Reference Price is subject to adjustment to the date
of delivery of the A330 Aircraft in accordance with the
Xxxxx & Xxxxxxx Xxxxx Revision Formula set forth in
Exhibit "H-1" of this Agreement.
4.1.2.2 A340 Aircraft: CFM International CFM 56-5C4 Propulsion
Systems
The Base Price of a set of four (4) CFM 56-5C4 Propulsion
Systems and additional standard equipment, at delivery
conditions prevailing in January 1999, is:
US $ ***
(US dollars--***).
Said Base Price has been calculated with reference to the
Reference Price indicated by CFM International of US $
*** as defined by the Reference Composite Price Index of
*** and in accordance with economic conditions prevailing
in ***.
Said Reference Price is subject to adjustment to the date
of delivery of the A340 Aircraft in accordance with the
CFM International Price Revision Formula set forth in
Exhibit "H-2" of this Agreement.
4.2 Final Contract Price
The Final Contract Price of an Aircraft will be the sum
of:
(i) the Base Price of the Airframe constituting
a part of such Aircraft, as adjusted to the
date of delivery of such Aircraft in
accordance with Subclause 5.1 of this
Agreement;
(ii) the price (as of delivery conditions
prevailing in January 1999) of any SCNs
constituting a part of such Aircraft that
are entered into pursuant to Clause 3 after
the date of execution of this Agreement, as
adjusted to the date of delivery of such
Aircraft in accordance with Subclause 5.1
of this Agreement;
(iii) the Reference Price of the installed
Propulsion Systems constituting a part of
such Aircraft, as adjusted to the date of
delivery of such Aircraft in accordance
with Subclause 5.2 of this Agreement; and
(iv) any other adjustment resulting from any
other provisions of this Agreement and/or
any other written agreement between the
Buyer and the Seller relating to the
Aircraft and specifically stating that such
adjustment is to be included in or taken
into account in the Final Contract Price of
an Aircraft, such as the Seller's purchase
of Buyer Furnished Equipment from the
Buyer.
4.3 Validity of Propulsion Systems Prices
It is understood that the prices cited above and the
price revision formulas referred to in Subclause 5.2
concerning the Propulsion Systems and related equipment
are based on information received from the relevant
Propulsion Systems manufacturer and remain subject to any
modifications that might be jointly communicated by such
Propulsion Systems manufacturer and the Buyer to the
Seller and the Manufacturer.
4.4 Taxes, Duties and Imposts
4.4.1 The Seller will bear and pay the amount of any and all
taxes, duties, imposts or similar charges of any nature
whatsoever that are (i) imposed upon the Buyer, or any
assignee pursuant to an assignment as set forth in Clause
19, (ii) imposed upon the Seller with an obligation on
the Buyer to withhold or collect the amount thereof from
the Seller or (iii) imposed upon the Buyer with an
obligation on the Seller to withhold or collect such
amount from the Buyer, and that are levied, assessed,
charged or collected for or in connection with the
fabrication, manufacture, modification, assembly, sale,
delivery, use of or payment under this Agreement for any
Aircraft, component, accessory, service, equipment or
part delivered or furnished hereunder, provided such
taxes, duties, imposts or similar charges have been
levied, assessed, charged or collected in the Republic of
France under laws promulgated and enforceable in the
Republic of France.
4.4.2 The Buyer will bear and pay the amount of any and all
taxes, duties, imposts or similar charges of any nature
whatsoever imposed upon the Seller (except for taxes
based on or measured by the Seller's income), imposed
upon the Buyer with an obligation on the Seller to
collect the amount thereof for the Buyer, or imposed upon
the Seller with an obligation for the Buyer to withhold
such amount from the Seller (except for income taxes
collected by withholding), which are levied, assessed,
charged or collected for or in connection with the sale,
delivery or use of (except any use prior to delivery to
the Buyer), or payment under this Agreement for any
Aircraft, component, accessory, equipment or part
delivered or furnished hereunder, provided such taxes,
duties, imposts or similar charges have been promulgated
and are enforceable under any laws ***.
4.4.3 If a claim is made against one party (the "Indemnitee")
for any taxes, duties, imposts or similar charges for
which the other party (the "Indemnitor") has agreed to be
liable pursuant to the provisions of this Agreement, the
Indemnitee will promptly notify the Indemnitor. In lieu
of any direction or request by the Indemnitor received
within five (5) Working Days of the due date specified in
said claim, the Indemnitee may pay the amount of said
tax, duty, impost or charge and claim against the
Indemnitor for reimbursement consistent with Subclause
4.4. However, if requested by the Indemnitor in writing,
the Indemnitee will, at the Indemnitor's expense, take
such action as the Indemnitor may reasonably direct with
respect to such asserted liability and will not pay such
taxes, duties, imposts or similar charges except under
protest, if protest is necessary. If payment is made, the
Indemnitee will, at the Indemnitor's expense, take such
action as the Indemnitor may reasonably direct to recover
payment and will, if requested, permit the Indemnitor in
the Indemnitee's name to file a claim or commence an
action to recover such payment. If the Indemnitee will
receive a refund or credit for all or any part of such
taxes, duties, imposts or similar charges, then the
Indemnitee will promptly repay the Indemnitor the amount
of any such refund or credits which are attributable to
the amount paid by the Indemnitor, including any interest
received thereon, but less any expenses incurred by the
Indemnitee in pursuing such refund or credit.
5 - PRICE REVISION
5.1 Airframe Price Revision Formula
The Base Price of the Airframe of each Aircraft will be
revised to the actual delivery date of such Aircraft in
accordance with the Airframe Price Revision Formula,
unless otherwise provided in this Agreement.
5.2 Propulsion Systems Price Revision Formula
The Reference Price of the Propulsion Systems will be
revised to the actual delivery date of the Aircraft on
which such Propulsion Systems are installed in accordance
with the revision formula set forth in, as applicable,
Exhibit "H-1" or Exhibit "H-2" hereto, unless otherwise
provided in this Agreement.
6 - PAYMENT TERMS
6.1 Method and Place of Payment
6.1.1 The Buyer will pay all sums due hereunder in immediately
available funds in United States dollars by credit to the
Seller's account at Credit Lyonnais, New York Branch, or
to such other account located in the United States of
America as the Seller will designate by notice to the
Buyer.
6.1.2 The Seller will pay all sums due hereunder to the Buyer
in immediately available funds in United States dollars
by credit to the Buyer's account, account no. 0000000, at
PNC Bank in Pittsburgh, Pennsylvania, or to such other
account located in the United States of America as the
Buyer designates by notice to the Seller.
6.2 Predelivery Payments
6.2.1 Predelivery Payments will be paid by the Buyer to the
Seller for each Aircraft and will, in the aggregate,
amount to *** of the Predelivery Payment Reference Price
of the Aircraft defined below in Subclause 6.2.3. ***
6.2.2 Predelivery Payments will be paid according to the
following schedules.
6.2.2.1 Predelivery Payments for the Firm Aircraft will be paid
according to the following schedule:
Percentage of the Predelivery
Payment Date Payment Reference Price
*** ***
6.2.2.2 Predelivery Payments for the Reconfirmable Aircraft and
Additional Aircraft will be paid according to the
following schedule:
Percentage of the Predelivery
Payment Date Payment Reference Price
*** ***
6.2.3 The Predelivery Payment Reference Price is defined as:
A = Pb (1 + ***)
where
A = the Predelivery Payment Reference Price for
Aircraft to be delivered in calendar year T.
Pb = the Base Price of the Aircraft as defined in
Subclause 4.1 above.
N = (T -1999)
T = the year of delivery of the relevant Aircraft.
6.2.4 The Seller acknowledges that it has already received from
the Buyer the sum of US$*** (US dollars-***), which
represents a deposit of US$ *** (US dollars-***) for each
of the Firm A330-300 Aircraft and a deposit of US$ ***
for each of the Reconfirmable A330-300 Aircraft (each a
"Deposit"). Each Deposit paid with respect to each
particular Firm A330-300 Aircraft and Reconfirmable
A330-300 Aircraft will be credited without interest
against the first Predelivery Payment for the applicable
Firm A330-300 Aircraft and Reconfirmable A330-300
Aircraft due in accordance with the schedules above in
Subclause 6.2.2.
6.3 Payment of Final Contract Price
Concurrently with the transfer of title to each Aircraft,
the Buyer will pay to the Seller the Final Contract Price
thereof, less the total amount of the Predelivery
Payments theretofore received by the Seller for such
Aircraft under Subclause 6.2 above,***. The Seller's
receipt of the full amount of all Predelivery Payments
and of the Final Contract Price *** will be a condition
precedent to the Seller's obligation to deliver such
Aircraft.
6.4 Payment of Other Amounts
Unless otherwise expressly provided for herein, any
payments due hereunder or in respect of an Aircraft in
addition to those referred to in Subclauses 6.2.2 and 6.3
above will be paid by the Buyer concurrently with the
delivery of the corresponding Aircraft or, if invoiced
after delivery of such Aircraft, within one (1) month
after the invoice date.
6.5 Overdue Payments
If any payment due under this Agreement is not received
on the date or dates as agreed upon between the Buyer and
the Seller, the person entitled to receive payments (the
"Recipient") will have the right to claim from the person
owing such payment (the "Payor") and the Payor will
promptly pay to the Recipient *** interest at a rate per
annum equal to *** on the amount of such overdue payment,
to be calculated from and including the due date of such
payment to (but excluding) the date such payment is
received by the Recipient. For purposes of the foregoing
sentence, any period of less than one month will be
prorated to include the period during which the payment
is overdue. The Recipient's right to receive such
interest will be in addition to any other rights of the
Recipient hereunder or at law. ***
6.6 Refund of Predelivery Payments
The Buyer will have no right to any refund of any deposit
or Predelivery Payment received by the Seller, except as
otherwise provided in this Agreement.
6.7 Proprietary Interest
The Buyer will not, by virtue of anything contained in
this Agreement (including, without limitation, any
Predelivery Payments hereunder, or any designation or
identification by the Seller of a particular Aircraft as
an Aircraft to which any of the provisions of this
Agreement refers), and notwithstanding any provision of
law to the contrary, acquire any proprietary, insurable
or other interest whatsoever in any Aircraft prior to
delivery of and payment for such Aircraft as provided in
this Agreement.
6.8 Tender of Delivery
In addition to any other rights and remedies available to
the Seller, the Seller will not be obligated to tender
delivery of any Aircraft to the Buyer, if, *** the Buyer
is still in default of its obligation to make any
Predelivery Payment due with respect to such Aircraft.
6.9 Payment in Full
The Buyer's obligation to make payments to the Seller
hereunder will not be affected by and will be determined
without regard to any setoff, counterclaim, recoupment,
defense or other right that the Buyer may have against
the Seller or any other person and all such payments will
be made without deduction or withholding of any kind.
7 - PLANT REPRESENTATIVES - INSPECTION
7.1 Inspection Procedures
7.1.1 All work to be carried out on the Aircraft and all
materials and parts thereof will at all reasonable times
during business hours be open to inspection by duly
authorized representatives of the Buyer or its designee
at the respective works of the Associated Contractors
and, if possible, at the works of their respective
subcontractors, and such representatives will, to carry
out the aforesaid inspection, have access to such
relevant technical data as is reasonably necessary for
this purpose (except that, if access to any part of the
respective works where construction is in progress or
materials or parts are stored is restricted for security
reasons, the Associated Contractors will be allowed a
reasonable time to make the items available for
inspection elsewhere). The actual detailed inspection of
the Aircraft, materials and parts thereof will take place
only in the presence of the respective inspection
department personnel of the Associated Contractors or
their subcontractors. The procedures for such inspections
will be agreed upon with the Buyer prior to any
inspection, based on modifications to the Manufacturer's
Quality Instruction document.
7.1.2 For the purposes of Subclause 7.1.1 above and commencing
with the date of this Agreement until the delivery of the
last Aircraft, the Seller will furnish free-of-charge
adequate secretarial assistance and suitable, private and
secure (with access limited and controlled by the Buyer
in its sole discretion) space, office equipment,
telecommunications (including telephone and facsimile
lines and equipment for professional use only) and
facilities in or conveniently located with respect to
Aerospatiale's works in Toulouse, France, for the use of
not more than six (6) (or more if reasonably necessary)
representatives of the Buyer during the aforementioned
period.
7.1.3 All inspections, examinations and discussions with the
Seller's, the Associated Contractors' or their respective
subcontractors' engineering or other personnel by the
Buyer and its said representatives will be performed in
such manner as not to unreasonably delay or hinder the
work to be carried out on the Aircraft or the proper
performance of this Agreement. In no event will the Buyer
or its representatives be permitted to inspect any
aircraft other than the Aircraft. The Seller will not
permit, and will cause the Manufacturer not to permit,
any representatives, employees, agents or personnel of
any other airline or customer to inspect, or to have
access to, the Aircraft or any designs or specifications
relating thereto.
7.2 INDEMNITY
7.2.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 7, THE SELLER AND THE BUYER PROVIDE THE
INDEMNITIES SET FORTH IN SUBCLAUSES 7.2.2 AND 7.2.3.
7.2.2 SELLER'S INDEMNITY
THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER,
ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND
AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND
EXPENSES
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS
(EXCEPTING INJURIES TO OR DEATH OF THE
BUYER'S REPRESENTATIVES PARTICIPATING IN
ANY TESTS, CHECKOUTS OR INSPECTIONS OR
CONTROLS UNDER THIS CLAUSE 7) CAUSED BY THE
BUYER OR ITS REPRESENTATIVES, AND
(II) FOR ANY LOSS OF OR DAMAGE TO PROPERTY
(EXCEPTING LOSS OF OR DAMAGE TO PROPERTY OF
THE BUYER'S SAID REPRESENTATIVES) CAUSED BY
THE BUYER OR ITS REPRESENTATIVES,
ARISING OUT OF OR IN CONNECTION WITH ANY SUCH TESTS,
CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS CLAUSE 7.
THIS INDEMNITY OF THE SELLER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING
OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES.
7.2.3 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER,
THE MANUFACTURER, EACH OF THE ASSOCIATED CONTRACTORS AND
THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE
OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL
LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES
(I) FOR INJURIES TO OR DEATHS OF THE BUYER'S SAID
REPRESENTATIVES PARTICIPATING IN ANY TESTS,
CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS
CLAUSE 7,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE
BUYER'S SAID REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OF THE
BUYER'S SAID REPRESENTATIVES.
WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE PRECEDING
SENTENCE, THE BUYER WILL NOT BE OBLIGATED TO INDEMNIFY OR
HOLD HARMLESS THE SELLER WHERE THE LIABILITIES, DAMAGES,
LOSSES, COSTS OR EXPENSES ARISE FROM THE SELLER'S, THE
MANUFACTURER'S OR ANY OF THE ASSOCIATED CONTRACTORS' OR
THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE
OFFICERS', AGENTS' OR EMPLOYEES' WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE.
7.2.4 CLAIMS
IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT
AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR
INJURY, OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH
HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS
SUBCLAUSE 7.2, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE
NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE
INDEMNITOR WILL HAVE THE RIGHT TO INVESTIGATE, AND THE
RIGHT IN ITS SOLE DISCRETION TO ASSUME AND CONDUCT THE
DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT. HOWEVER, IF IN THE REASONABLE
OPINION OF THE INDEMNITEE, SUCH DEFENSE, SETTLEMENT OR
COMPROMISE INVOLVES THE POTENTIAL IMPOSITION OF CRIMINAL
LIABILITY ON THE INDEMNITEE OR A CONFLICT OF INTEREST
BETWEEN THE INDEMNITOR AND THE INDEMNITEE, THE INDEMNITOR
WILL NOT BE ENTITLED TO ASSUME AND CONDUCT THE DEFENSE OF
ANY SUCH CLAIM, ACTION, PROCEEDING OR LAWSUIT. THE
INDEMNITEES WILL BE ENTITLED, AT THEIR OWN EXPENSE,
ACTING THROUGH ONE (1) COUNSEL, TO PARTICIPATE IN ANY
CLAIM, ACTION, PROCEEDING OR LAWSUIT THE DEFENSE OF WHICH
HAS BEEN ASSUMED BY THE INDEMNITOR PURSUANT TO THE
PRECEDING PROVISIONS, PROVIDED, THAT SUCH PARTICIPATION
DOES NOT, IN THE REASONABLE OPINION OF INDEPENDENT
COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE CONDUCT OF
SUCH DEFENSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY,
NO SETTLEMENT OR COMPROMISE WILL BE ENTERED INTO WITHOUT
THE PRIOR WRITTEN CONSENT OF THE INDEMNITEE, WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED.
EACH INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM,
ACTION, PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND
CONDUCT THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE
INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH DEFENSE OF
THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE AND WILL
HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS,
SETTLEMENTS, COSTS OR EXPENSES INCURRED IN CONDUCTING
SAID DEFENSE. FOR THE PURPOSE OF THIS SUBCLAUSE 7.2, A
CLAIM OR LAWSUIT AGAINST THE MANUFACTURER OR ANY OF THE
ASSOCIATED CONTRACTORS OR ANY OF THEIR RESPECTIVE
SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A
LAWSUIT AGAINST THE SELLER.
8 - BUYER'S ACCEPTANCE
8.1 Acceptance Procedures
8.1.1 The Seller or any Affiliate thereof acting as the
Seller's designee will give to the Buyer not less than
thirty (30) days' notice of the proposed date and time
when the Buyer's acceptance tests will be conducted, and,
in the event that the Buyer elects to attend the said
tests, the Buyer will cooperate in complying with the
reasonable requirements of the Seller with the intention
of completing all tests within five (5) Working Days
after commencement. The tests will take place at
Aerospatiale's works near Toulouse, France, and will be
carried out by the personnel of the Manufacturer
(accompanied, if the Buyer so wishes, by representatives
of the Buyer up to a total of six (6) (or more if
reasonably requested by the Buyer) acting as observers,
of whom not more than two (2) will have access to the
cockpit at any one time and of whom one (1) may act as
copilot, subject to such person's appropriate
certification). During flight tests, these
representatives will comply with the instructions of the
Manufacturer's representatives. The Manufacturer will not
normally be required in the course of such acceptance
tests to fly any of the Aircraft for more than an
aggregate of three (3) hours, unless more time is
necessary to complete the acceptance tests.
8.1.2 The Seller will cause ASC, at no cost to the Buyer, to
brief, and provide one (1) free-of-charge four (4) hour
simulator session for each new set of acceptance pilots.
This briefing will provide specific information related
to acceptance flights.
8.1.3 The acceptance tests will be designed to demonstrate the
satisfactory functioning of the Aircraft and all systems
relating thereto, and compliance with the terms,
requirements and conditions of this Agreement, including
conformity to the Specifications and ***. During such
acceptance tests the Seller will make available to the
Buyer all records and logs relating to the Aircraft and
related systems, and the Buyer will have access to
interior equipment, parts and components and will be
permitted to perform ground checks, and, with respect to
the Propulsion Systems, engine runs, engine borescoping
and performance acceptance checks. The successful
completion of such acceptance tests will also be deemed
to demonstrate compliance with the Specifications. The
acceptance tests will be conducted in accordance with the
Manufacturer's aircraft acceptance procedure, as amended
to incorporate the Buyer's reasonable requests. At the
time of delivery, the Aircraft will comply with all
relevant limits and tolerances specified in the Aircraft
Maintenance Manual. In the event that the Buyer does not
attend the tests or fails to so cooperate, the Seller may
complete them in the absence of the Buyer, provided that
the Seller has given the Buyer reasonable prior written
notice of not less than seven (7) days of its intention
to complete such tests and the Buyer remains absent or
uncooperative. The Buyer will be deemed to have accepted
the tests, if such tests are reasonably deemed
satisfactory by the Seller, and the Seller will furnish
such data with respect to such tests as the Buyer may
reasonably request. Notwithstanding the above, said
acceptance by the Buyer will not impair the rights of the
Buyer that derive from the warranties relating to the
Aircraft.
8.1.4 If the acceptance tests for an Aircraft are not
successfully completed or there is a defect, the Buyer,
within two (2) days after such tests, will give notice to
the Seller specifying such unsuccessful completion or
defect. Thereafter the Seller will, without unreasonable
hindrance from the Buyer, carry out any necessary changes
and, as soon as practicable thereafter, resubmit the
Aircraft for new acceptance tests, including flight tests
if necessary, demonstrate the elimination of the defect,
such tests to be held and carried out in accordance with
this Subclause 8.1. In order to avoid a delay in the
delivery of any Aircraft found to have one or more
defects, the Buyer may elect with the consent of the
Seller (such consent not to be unreasonably withheld) to
take delivery of such Aircraft prior to the correction of
such defects and without prejudice to any rights the
Buyer may have under this Agreement against the Seller by
reason of such defects.
In the event the Buyer elects to take delivery of an
Aircraft with defects pursuant to the preceding
paragraph, delivery of such Aircraft will be made as
originally scheduled, and such defects will be corrected,
at the Seller's expense, by the Buyer or the Seller at
such subsequent time as is mutually acceptable to the
Buyer and the Seller, and as will be set forth in a
written agreement that will state the settlement agreed
by the Buyer and the Seller with respect to such defects.
8.1.5 Within three (3) months of execution of the Agreement,
the Buyer and the Seller will review the technical
documentation provided by the Seller at delivery of each
Aircraft, and, if practicable, will agree on any
reasonable changes to such documentation deemed necessary
by the Buyer.
8.2 Seller's Use of Aircraft
The Seller will be entitled to use, without compensation
to the Buyer, each Aircraft prior to its delivery as may
be necessary to obtain the certificates required under
Clause 2 hereof. Such use will not *** affect the Buyer's
obligation to accept delivery of any Aircraft hereunder.
*** All damage incurred in connection with the Seller's
use of the Aircraft will be repaired ***.
8.3 Certificate of Acceptance
When the Aircraft is "ready for delivery" as defined
below in Subclause 9.2, the Buyer will forthwith give to
the Seller a signed Certificate of Acceptance in the form
attached as Exhibit "E" in respect of the relevant
Aircraft. Should the Buyer fail to so deliver the said
Certificate, then the Buyer will be deemed to be in
default as though it had without warrant rejected
delivery of such Aircraft when duly tendered to it
hereunder and will thereafter bear all costs and expenses
resulting from such delay in delivery. The execution and
delivery of a Certificate of Acceptance by the Buyer in
respect of an Aircraft will not constitute waiver by the
Buyer of any rights and remedies it may have in respect
of any Aircraft under Clauses 12 and 13 of this
Agreement.
8.4 Finality of Acceptance
The Buyer's acceptance of delivery of each Aircraft will
constitute waiver by the Buyer of any right it may have
under the Uniform Commercial Code or otherwise to revoke
such acceptance for any reason, whether known or unknown
to the Buyer at the time of acceptance.
8.5 INDEMNITY
8.5.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 8, THE SELLER AND THE BUYER PROVIDE THE
INDEMNITIES SET FORTH IN SUBCLAUSES 8.5.2 AND 8.5.3.
8.5.2 SELLER'S INDEMNITY
THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER,
ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND
AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND
EXPENSES
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS
(EXCEPTING INJURIES TO AND DEATHS OF THE
BUYER'S REPRESENTATIVES PARTICIPATING IN
ANY GROUND OR FLIGHT TESTS UNDER THIS
CLAUSE 8) CAUSED BY THE BUYER OR ITS
REPRESENTATIVES, AND
(II) FOR ANY LOSS OF OR DAMAGE TO PROPERTY
(EXCEPTING LOSS OF OR DAMAGE TO PROPERTY OF
THE BUYER'S SAID REPRESENTATIVES), CAUSED
BY THE BUYER OR ITS REPRESENTATIVES,
ARISING OUT OF OR IN CONNECTION WITH THE OPERATION OF THE
AIRCRAFT DURING ANY GROUND OR FLIGHT TESTS UNDER THIS
CLAUSE 8.
THIS INDEMNITY OF THE SELLER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING
OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES.
8.5.3 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER,
THE MANUFACTURER, EACH OF THE ASSOCIATED CONTRACTORS AND
THEIR RESPECTIVE SUBCONTRACTORS AND EACH OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM
AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND
EXPENSES
(I) FOR INJURIES TO OR DEATHS OF THE BUYER'S
SAID REPRESENTATIVES PARTICIPATING IN ANY
GROUND OR FLIGHT TESTS UNDER THIS CLAUSE 8,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE
BUYER'S SAID REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OF THE
BUYER'S SAID REPRESENTATIVES.
WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE PRECEDING
SENTENCE, THE BUYER WILL NOT BE OBLIGATED TO INDEMNIFY OR
HOLD HARMLESS THE SELLER WHERE THE LIABILITIES, DAMAGES,
LOSSES, COSTS OR EXPENSES ARISE FROM THE SELLER'S, THE
MANUFACTURER'S OR ANY OF THE ASSOCIATED CONTRACTORS' OR
THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE
OFFICERS', AGENTS' OR EMPLOYEES' WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE.
8.5.4 CLAIMS
IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT
AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR
INJURY OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH
HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS
SUBCLAUSE 8.5, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE
NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE
INDEMNITOR WILL HAVE THE RIGHT TO INVESTIGATE, AND THE
RIGHT IN ITS SOLE DISCRETION TO ASSUME AND CONDUCT THE
DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE,
SUCH DEFENSE, SETTLEMENT OR COMPROMISE INVOLVES THE
POTENTIAL IMPOSITION OF CRIMINAL LIABILITY ON THE
INDEMNITEE OR A CONFLICT OF INTEREST BETWEEN THE
INDEMNITOR AND THE INDEMNITEE, THE INDEMNITOR WILL NOT BE
ENTITLED TO ASSUME AND CONDUCT THE DEFENSE OF ANY SUCH
CLAIM, ACTION, PROCEEDING OR LAWSUIT. THE INDEMNITEES
WILL BE ENTITLED, AT THEIR OWN EXPENSE, ACTING THROUGH
ONE (1) COUNSEL, TO PARTICIPATE IN ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT THE DEFENSE OF WHICH HAS BEEN
ASSUMED BY THE INDEMNITOR PURSUANT TO THE PRECEDING
PROVISIONS, PROVIDED, THAT SUCH PARTICIPATION DOES NOT,
IN THE REASONABLE OPINION OF INDEPENDENT COUNSEL OF THE
INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DEFENSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT
OR COMPROMISE WILL BE ENTERED INTO WITHOUT THE PRIOR
WRITTEN CONSENT OF THE INDEMNITEE, WHICH CONSENT WILL NOT
BE UNREASONABLY WITHHELD OR DELAYED. EACH INDEMNITEE WILL
COOPERATE WITH THE INDEMNITOR IN THE INVESTIGATION AND
CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION, PROCEEDING
OR LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND
CONDUCT THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE
INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH DEFENSE OF
THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE AND WILL
HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS,
SETTLEMENTS, COSTS OR EXPENSES INCURRED IN CONDUCTING
SAID DEFENSE. FOR THE PURPOSE OF THIS SUBCLAUSE 8.5, A
CLAIM OR LAWSUIT AGAINST THE MANUFACTURER OR ANY OF THE
ASSOCIATED CONTRACTORS OR ANY OF THEIR RESPECTIVE
SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A
LAWSUIT AGAINST THE SELLER.
9 - DELIVERY
9.1 Delivery Locations, Schedule and Notice of Delivery Date
Subject to the provisions of this Agreement, the Seller
will have the Aircraft ready for delivery at
Aerospatiale's works near Toulouse, France.
9.1.1 The Buyer will accept the Aircraft, during the months and
years set forth below in this Subparagraph 9.1.1.
(i) Firm A330-300 Aircraft
***
(ii) Reconfirmable A330-300 Aircraft
***
The delivery dates for Firm A330-300 Aircraft ***.
In addition, the delivery dates set forth in Subclause
9.1.1(i) are ***.
9.1.2 [INTENTIONALLY LEFT BLANK]
9.1.3 [INTENTIONALLY LEFT BLANK]
9.1.4 ***
Not later than *** prior to the scheduled *** of delivery
for a particular Aircraft ***, the Seller will (i) give
to the Buyer notice of the date scheduled for acceptance
tests for such Aircraft and (ii) confirm to the Buyer
that the anticipated delivery date ***.
9.2 Certificate of Airworthiness
Each Aircraft will for the purpose of this Agreement be
deemed to be "ready for delivery" upon (a) the
satisfactory completion of its acceptance tests, (b) the
issuance of Certificate of Airworthiness for Export in
the "Transport Category" with respect thereto by the
DGAC, and (c) the Seller's compliance with the other
obligations to be performed by it under Subclauses 2.3
and 9.3 hereof.
9.3 Title
Title to and risk of loss of and damage to the Aircraft
will pass to the Buyer upon delivery following execution
of the Certificate of Acceptance and upon payment of the
Final Contract Price for such Aircraft. The Seller will
provide the Buyer with (a) an invoice(s) in form and
substance satisfactory to the Buyer, (b) a xxxx of sale
duly conveying to the Buyer good title to such Aircraft
free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever, (c) an FAA-approved
form xxxx of sale executed by the Seller in favor of the
Buyer, and (d) such other appropriate documents of title
or other documents as the Buyer may reasonably request.
9.4 Buyer Delays
In the event that:
(i) the delivery of and payment of the Final
Contract Price for the Aircraft is delayed more
than five (5) days after the firm delivery date
established pursuant to Subclause 9.1 due to any
breach of the Buyer under this Agreement, or
(ii) within two (2) days after delivery of and
transfer of title to the Aircraft the Buyer has
failed to remove such Aircraft for whatever
reason (except for reasons attributable to the
Seller or the Manufacturer),
then the Buyer will on demand reimburse the Seller for
all reasonable out-of-pocket costs and expenses sustained
by the Seller and resulting from any such delay or
failure. Such reimbursement will be in addition to any
other rights that the Seller may have under this
Agreement as a result of any such delay or failure.
9.5 Flyaway Expenses
***
10 - EXCUSABLE DELAY
10.1 Scope
Neither the Seller nor the Manufacturer will be
responsible for or be deemed to be in default on account
of delays in delivery or failure to deliver or otherwise
in the performance of this Agreement or any part hereof
due to causes reasonably beyond the Seller's, the
Manufacturer's or any Associated Contractor's control or
not occasioned by the Seller's, the Manufacturer's or any
Associated Contractor's fault, misconduct or negligence
("Excusable Delay").
It is expressly understood and agreed that each of (i)
any delay caused directly or indirectly by the Buyer's
failure to comply with its obligations hereunder, and
(ii) any delay in delivery or otherwise in the
performance of this Agreement by the Seller due in whole
or in part to any delay in or failure of the delivery of,
or any other event or circumstance relating to, the
Propulsion Systems or Buyer Furnished Equipment, will, to
the extent attributable to such delay, constitute
Excusable Delay for the Seller, unless such delay or
failure of delivery or other event or circumstance is
attributable to any default by the Seller of its
obligations hereunder or any failure of the Seller to
notify the Buyer and the manufacturer of the Propulsion
Systems in a timely manner of the Seller's need therefor.
The Seller will promptly after becoming aware of any
delay falling within the provisions of this Subclause
10.1 (i) notify the Buyer of such delay and of the
probable extent thereof, including, without limitation, a
description of the cause thereof and, if possible, a
possible date of rescheduled delivery in accordance with
the terms of this Agreement, and after such prompt
initial notice, apprise the Buyer of the status of such
delay and possible date of such rescheduled delivery, and
(ii) subject to the following provisions, as soon as
practicable after the removal of the cause or causes for
delay, resume the performance of those obligations
affected under this Agreement. The Seller and the
Manufacturer will endeavor to limit the extent of any
such delay. The Seller will schedule the delivery of the
Aircraft that is the subject of such delay to a date
compatible with the Aircraft delivery schedule of the
Buyer.
10.2 Unanticipated Delay
In the event that the delivery of any Aircraft will be
delayed by reason of an Excusable Delay for a period of
more than twelve (12) months after the end of the
calendar month in which delivery is otherwise required
hereunder, the Buyer will be entitled to terminate this
Agreement with respect only to the Aircraft so affected
upon written notice given to the Seller within thirty
(30) days after the expiration of such twelve (12) month
period. In the event such delay will continue for an
additional six (6) month period after the expiration of
such twelve (12) month period, either party will have the
option to terminate this Agreement with respect to the
Aircraft so affected upon written notice given to the
other within thirty (30) days after the end of such
additional six (6) month period. Any termination of this
Agreement in respect of an Aircraft pursuant to this
Subclause 10.2 will discharge all obligations and
liabilities of the parties hereunder with respect to such
affected Aircraft, ***.
10.3 Anticipated Delay
In respect of any Aircraft, the Seller may conclude that
Excusable Delays will (i) cause delay in delivery of such
Aircraft for a period of more than twelve (12) months
after the end of the calendar month in which delivery is
otherwise required or (ii) prevent delivery of such
Aircraft. In such event, in good faith and in accordance
with its normal scheduling procedures, the Seller will
give written notice to the Buyer of either (i) such delay
and its related rescheduling reflecting such delay(s) or
(ii) such nondelivery. Within thirty (30) days after the
Buyer's receipt of such notice, the Buyer may terminate
this Agreement as to such rescheduled or nondeliverable
Aircraft by giving written notice to the Seller. Such
termination will discharge all obligations and
liabilities of the parties hereunder with respect to such
affected Aircraft, ***.
10.4 Delivery Date
If, following notice of an anticipated delay under
Subclause 10.3, this Agreement is not terminated in
accordance with the provisions of Subclause 10.3 (with
respect to the affected Aircraft), then the date of
delivery otherwise required hereunder will be extended by
a period equal to the delay specified in such notice,
with a view towards having each Aircraft subject to such
Excusable Delay ready for delivery as promptly as
practicable. ***
10.5 Lost, Destroyed or Damaged Aircraft
10.5.1 If any Aircraft suffers a total loss, is destroyed, or is
damaged beyond economic repair prior to delivery thereof,
then this Agreement will be terminated with respect to
such Aircraft and the obligations and liabilities of the
parties hereunder with respect to such Aircraft will be
discharged. The Seller will repay to the Buyer an amount
equal to the entire amount of any Predelivery Payments
received from the Buyer hereunder with respect to any
such Aircraft that is lost, destroyed or damaged beyond
economic repair, ***.
10.5.2 If during the manufacturing process for any Aircraft or
at any other time prior to the delivery and performance
of any Aircraft, any Aircraft suffers damages in excess
of *** or is otherwise damaged in any material respect
(but not to the extent within the purview of Subclause
10.5.1), then the Seller will delivery a notice thereof
to the Buyer specifying the cause and nature thereof in
reasonable detail and how the Seller intends to cure the
same.
10.6 Equal Treatment
The Seller will use all reasonable efforts to ensure that
each Aircraft subject to an Excusable Delay is ***.
10.7 Additional Aircraft
In the event of termination of this Agreement in respect
of an Aircraft under Clause 10, the number of Additional
Aircraft will be increased by one unit. ***
10.8 REMEDIES
THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY
OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO
DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE
11, AND THE BUYER HEREBY WAIVES ALL RIGHTS, INCLUDING
WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND
CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH
IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF. THE
BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND
RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 10 TO THE
EXTENT THE DELAY REFERRED TO IN THIS CLAUSE 10 IS CAUSED
BY THE NEGLIGENCE OR FAULT OF THE BUYER OR ITS
REPRESENTATIVES.
11 - INEXCUSABLE DELAY
11.1 Should an Aircraft not be ready for delivery to the Buyer
within thirty (30) days after the date specified in this
Agreement (as such date may otherwise be changed pursuant
to this Agreement) for reasons other than as are covered
by Clause 10 or for circumstances specified in Subclause
11.6 ("Inexcusable Delay"), the Buyer will, in respect of
any subsequent delay in delivery of such Aircraft, have
the right to claim and the Seller will in respect of any
subsequent delay, at the Buyer's option, pay or credit to
the Buyer as liquidated damages for such subsequent delay
in delivery of such Aircraft US $*** (US dollars-***) for
each day of subsequent delay in the delivery, until the
date of actual delivery or the effective date of the
written notice of termination referred to in Subclause
11.4 plus any amount referred to in Subclause 11.4.
The Seller will immediately after becoming aware of any
Inexcusable Delay or any potential Inexcusable Delay (i)
notify the Buyer of such delay and the probable extent
thereof, including, when possible, a detailed description
of the cause thereof and, if possible, a possible date of
rescheduled delivery in accordance with the terms of this
Agreement and after such immediate initial notice,
apprise the Buyer of the status of such delay and
possible date of such rescheduled delivery on a regular
basis, and (ii) subject to the following provisions, as
soon as practicable after the removal of the cause or
causes for delay, resume the performance of those
obligations affected under this Agreement with a view
towards having each Aircraft subject to such Inexcusable
Delay ready for delivery as promptly as practicable.
11.2 Total Liability
Notwithstanding Subclause 11.1, the total liability of
the Seller under this Clause 11 and this Agreement with
respect to any Aircraft will in no event exceed the total
sum of US $ *** (US dollars-***) plus any amount referred
to in Subclause 11.3 or 11.4.
11.3 *** Delay
Notwithstanding anything to the contrary in the
Agreement, if the Buyer receives notice that any Aircraft
will be subject to an Inexcusable Delay that exceeds ***,
or if an Inexcusable Delay for any Aircraft occurs that
exceeds ***, regardless of whether notice thereof has
been given or received, ***.
11.4 Six-Month Delay
In the event that an Inexcusable Delay exceeds six (6)
months, the Buyer will have the right, exercisable by
written notice to the Seller given no less than one (1)
month and no more than two (2) months after such six (6)
month period, to terminate this Agreement in respect only
of the Aircraft that is subject to such Inexcusable
Delay, whereupon the Seller will pay the Buyer, within
one (1) month after such notice, an amount equal to all
Predelivery Payments made by the Buyer to the Seller in
relation to such Aircraft, ***.
11.5 Equal Treatment
The Seller will use all reasonable efforts to ensure that
each Aircraft subject to an Inexcusable Delay is ***.
11.6 Special Circumstances
11.6.1 ***
11.6.2 ***
11.6.3 ***
11.6.4 ***
11.6.5 ***
11.7 Additional Aircraft
In the event of termination of this Agreement in
respect of an Aircraft under Subclause 11.4, the number
of Additional Aircraft will be increased by one unit. ***
11.8 REMEDIES
THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY
OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO
DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE
10, AND THE BUYER HEREBY WAIVES ALL RIGHTS, INCLUDING
WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND
CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH
IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF.
12 - WARRANTIES AND SERVICE LIFE POLICY
12.1 STANDARD WARRANTY
12.1.1 Nature of Warranty
12.1.2 Exceptions
12.1.3 Warranty Periods
12.1.4 Buyer's Remedy and Seller's Obligation
12.1.5 Warranty Claim Requirements
12.1.6 Warranty Administration
12.1.7 In-house Warranty
12.1.8 Standard Warranty Transferability
12.1.9 Warranty for Corrected, Replacement or Repaired Warranted
Parts
12.1.10 Good Airline Operation - Normal Wear and Tear
12.2 SELLER SERVICE LIFE POLICY
12.2.1 Definitions
12.2.2 Periods and Seller's Undertakings
12.2.3 Seller's Participation in the Cost
12.2.4 General Conditions and Limitations
12.2.5 Transferability
12.3 VENDOR WARRANTIES
12.3.1 Seller's Support
12.3.2 Vendor's Default
12.4 INTERFACE COMMITMENT
12.4.1 Interface Problem
12.4.2 Seller's Responsibility
12.4.3 Vendor's Responsibility
12.4.4 Joint Responsibility
12.4.5 General
12.5 Performance Standard
12.6 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS
OF LIABILITY
12.7 DUPLICATE REMEDIES
12.8 SURVIVABILITY
12 - WARRANTIES AND SERVICE LIFE POLICY
The Seller, in its capacity as "Buyer" under its
arrangements with the Manufacturer, has negotiated and
obtained the following Standard Warranty, Service Life
Policy, Vendor Warranties and Interface Commitment from
the Manufacturer with respect to the Aircraft, subject to
the terms, conditions, limitations and restrictions
(including, but not limited to, the Exclusivity of
Warranties and General Limitations of Liability and
Duplicate Remedies provisions) all as hereinafter set
out. The Seller hereby guarantees to the Buyer the
performance by the Manufacturer of the Manufacturer's
obligations and assigns to the Buyer, and the Buyer
hereby accepts, all of the rights and obligations of the
Seller in the Seller's capacity as "Buyer" as aforesaid
under the said Standard Warranty, Service Life Policy,
Vendor Warranties and Interface Commitment and the Seller
subrogates the Buyer into all such rights and obligations
in respect of the Aircraft. The Seller hereby warrants to
the Buyer that the Seller has all requisite authority to
make the foregoing assignment and effect the foregoing
subrogation to and in favor of the Buyer and that the
Seller will not enter into any amendment of the
provisions so assigned without the prior written consent
of the Buyer. Capitalized terms utilized in the following
provisions have the meanings assigned thereto in this
Agreement, except that the term "Seller" refers to the
Manufacturer and the term "Buyer" refers to the Seller
and cross-references herein refer to Clauses and Exhibits
in this Agreement or to Paragraphs in any Letter
Agreement hereto.
QUOTE
12.1 STANDARD WARRANTY
12.1.1 Nature of Warranty
Subject to the limitations and conditions as hereinafter
provided, and except as provided in Subclause 12.1.2, the
Seller warrants to the Buyer that each Aircraft and each
Warranted Part will at the time of delivery to the Buyer:
(i) be free from defects in material,
(ii) be free from defects in workmanship, including,
without limitation, processes of manufacture,
(iii) be free from defects in design (including,
without limitation, selection of materials,
parts and components) having regard to the state
of the art at the date of such design,
(iv) be free from defects arising from failure to
conform to the Specifications,
(v) permit complete interchangeability among
Aircraft and parts of like part-numbered parts,
and
(vi) be free and clear of all liens and other
encumbrances.
For the purposes of this Agreement, the term "Warranted
Part" will mean any Seller proprietary component,
equipment, accessory or part that at the time of delivery
of an Aircraft (a) is installed on or incorporated in
such Aircraft, (b) is manufactured to the detail design
of the Seller or a subcontractor of it and (c) bears a
part number of the Seller.
12.1.2 Exceptions
The warranties set forth in Subclause 12.1.1 will not
apply to Buyer Furnished Equipment, nor to engines, nor
to any component, accessory, equipment or part purchased
by the Buyer that is not a Warranted Part, provided,
however, that:
(i) any defect in the Seller's workmanship in
respect of the installation of such items in or
on the Aircraft, including any failure by the
Seller to conform to the installation
instructions of the manufacturers of such items
that invalidates any applicable warranty from
such manufacturers, will constitute a defect in
workmanship for the purpose of this Subclause
12.1 and be covered by the warranty set forth in
Subclause 12.1.1(ii), and
(ii) any defect inherent in the Seller's design of
the installation, in view of the state of the
art at the date of such design, that impairs the
use or function of such items will constitute a
defect in design for the purposes of this
Subclause 12.1 and be covered by the warranty
set forth in Subclause 12.1.1(iii).
12.1.3 Warranty Periods
The warranties described in Subclauses 12.1.1 and 12.1.2
herein above will be limited to those defects that become
apparent within thirty-six (36) months after delivery of
the affected Aircraft.
12.1.4 Buyer's Remedy and Seller's Obligation
12.1.4.1 The Buyer's remedy and the Seller's obligation and
liability under Subclauses 12.1.1 and 12.1.2 herein above
are limited to, at the Seller's expense, the repair,
replacement or correction of, or the supply of
modifications kits rectifying the defect for, any
defective Warranted Part, as mutually agreed between and
satisfactory to the Buyer and the Seller. *** Nothing
herein contained will obligate the Seller to correct any
failure to conform to the Specifications with respect to
components, equipment, accessories or parts that the
parties agree in writing at the time of delivery of the
affected Aircraft are acceptable deviations or have no
material adverse effect on the use, operation or
performance of an Aircraft.
If the Seller issues a Service Bulletin that requires ***
retrofit of equipment on a number of delivered Aircraft,
the Buyer can ***.
12.1.4.2 In the event a defect covered by Subclause 12.1.1 becomes
apparent within the period set forth in Subclause 12.1.3
and the Seller is obligated to correct such defect, the
Seller will also, if so requested by the Buyer in writing
and if reasonably practicable, make such correction in
any affected Aircraft that has not already been delivered
to the Buyer. Rather than accept a delay in delivery of
any such Aircraft, the Buyer and the Seller may agree to
deliver such Aircraft with subsequent correction of the
defect by the Buyer at the Seller's expense, or the Buyer
may elect to accept delivery and thereafter file a
Warranty Claim as though the defect had become apparent
immediately after delivery of such Aircraft.
12.1.4.3 In addition to the remedies set forth in Subclauses
12.1.4.1 and 12.1.4.2, the Seller will ***. The above
commitment is subject to the following conditions:
(i) ***
(ii) ***
(iii) ***
12.1.5 Warranty Claim Requirements
The Buyer's remedy and the Seller's obligation and
liability under this Subclause 12.1, with respect to each
claimed defect, are subject to the following conditions
precedent:
(i) the existence of a defect covered by the
provisions of this Subclause 12.1,
(ii) the defect's having become apparent within the
applicable warranty period, as set forth in
Subclause 12.1.3,
(iii) the Buyer's having returned as soon as
reasonably practicable the Warranted Part
claimed to be defective to such repair
facilities as may be designated by the Seller
*** except where the Buyer elects to repair a
defective Warranted Part in accordance with the
provisions of Subclause 12.1.7, and
(iv) the Seller's having received a Warranty Claim
fulfilling the conditions of and in accordance
with the provisions of Subclause 12.1.6 below.
12.1.6 Warranty Administration
The warranties set forth in Subclause 12.1 will be
administered as hereinafter provided:
(i) Transportation Costs
Transportation costs associated with the sending
of a defective Warranted Part to the facilities
designated by the Seller and for the return
therefrom of a repaired or replacement Warranted
Part will be borne by the Buyer ***.
(ii) Return of an Aircraft
In the event that the Buyer desires to return an
Aircraft to the Seller for consideration of a
Warranty Claim, the Buyer will notify the Seller
of its intention to do so and the Seller will,
prior to such return, have the right to inspect
such Aircraft and thereafter, without prejudice
to its rights hereunder, to repair such
Aircraft, at its sole option, either at the
Buyer's facilities, provided that space is
available, or at another mutually acceptable
location. Return of any Aircraft by the Buyer to
the Seller and return of such Aircraft to the
Buyer's facilities will be ***. The Buyer and
the Seller will also mutually agree on ***.
(iii) On-Aircraft Work by the Seller
In the event that a defect subject to this
Subclause 12.1 may justify the dispatch by the
Seller of a working team to repair or correct
such defect at the Buyer's facilities, or in the
event of the Seller's accepting the return of an
Aircraft to perform or have performed such
repair or correction *** as determined in
accordance with in Subclause 12.1.7(v)(a).
If the Seller is requested to perform the work,
the Seller and the Buyer will agree on a
schedule and place for the work to be performed.
(iv) Warranty Claim Substantiation
For each claim under this Subclause 12.1, the
Buyer will give written notice to the Seller
that contains at least the following data, to
the extent reasonably ascertainable, available
and relevant, with respect to a part or
Aircraft, as applicable ("Warranty Claim"). The
absence of data from any Warranty Claim will not
prejudice validity of such Warranty Claim. The
Buyer will endeavor to give the Seller such
Warranty Claim within *** of discovering the
defect giving rise to such Warranty Claim, but
in no event later than *** after such defect
becomes apparent.
(a) description of defect and action taken,
if any,
(b) date of incident and/or of removal,
(c) description of the defective part,
(d) part number,
(e) serial number (if applicable),
(f) position on Aircraft, according to
Catalog Sequence Number (CSN) of the
Illustrated Parts Catalog, Component
Maintenance Manual or Structural Repair
Manual (as such documents are defined
in Clause 14 and Exhibit "F" hereto) as
applicable,
(g) total flying hours or calendar times,
as applicable, at the date of
appearance of a defect,
(h) time since last shop visit at the date
of defect appearance,
(i) Manufacturer's serial number of the
Aircraft and/or its registration
number,
(j) Aircraft total flying hours and/or
number of landings at the date of
defect appearance,
(k) claim number,
(l) date of claim, and
(m) date of delivery of an Aircraft or part
to the Buyer.
Claims are to be addressed as follows:
AIRBUS INDUSTRIE
CUSTOMER SERVICE DIVISION - SG-C
WARRANTY ADMINISTRATION
ROND-POINT XXXXXXX XXXXXXXX
F-31707 BLAGNAC
FRANCE
or to the office of the Resident Customer
Support Representatives assigned to the Buyer
under Subclause 15.1.2 of this Agreement.
(v) Acceptance and Rejection
The Seller will accept or reject each Warranty
Claim within *** of receipt thereof. *** The
Seller will provide reasonable written
substantiation in case of rejection of a
Warranty Claim. Transportation, insurance, and
any other costs associated with the sending of
any Warranted Part or any other item, equipment,
component or part for which the Buyer's Warranty
Claim is rejected by the Seller will be borne by
the Buyer. The Buyer may at any time appeal the
rejection with the Customer Support Director
referred to in Subclause 15.3 of this Agreement.
(vi) Replacements
Replacements made pursuant to this Subclause
12.1 will be made within the lead time defined
in the Seller's Spare Parts Price List. The
Seller will use all reasonable efforts to
achieve expedited handling of replacements.
Replaced components, equipment, accessories or
parts will become the Seller's property.
Title to and risk of loss of any Aircraft,
component, accessory, equipment or part returned
by the Buyer to the Seller will at all times
remain with the Buyer, except that (i) when the
Seller has possession of a returned Aircraft,
component, accessory, equipment or part to which
the Buyer has title, the Seller will have such
responsibility therefor as is chargeable by law
to a bailee for hire, but the Seller will not be
liable for loss of use, and (ii) title to and
risk of loss of a returned component, accessory,
equipment or part will pass to the Seller upon
receipt by the Buyer of any item furnished by
the Seller to the Buyer as a replacement
therefor. Upon the Buyer's receipt of any
replacement component, accessory, equipment or
part provided by the Seller pursuant to this
Subclause 12.1, title to and risk of loss of
such component, accessory, equipment or part
will pass to the Buyer.
(vii) Inspection
The Seller will have the right to inspect the
affected Aircraft and documents and other
records relating thereto in the event of any
claim under this Subclause 12.1, on reasonable
prior written notice to the Buyer. Each such
inspection will be made during reasonable times
during the Buyer's normal business day and will
not unreasonably interfere with the Buyer's
operation or personnel.
12.1.7 In-house Warranty
(i) Authorization
The Buyer is hereby authorized to perform the
repair of Warranted Parts, subject to the terms
of this Subclause 12.1.7 ("In-house Warranty").
The Buyer will use reasonable efforts to notify
the Seller's representative of its decision to
perform any In-house repairs before such repairs
are commenced, unless it is not practical to do
so, in which case the Buyer will notify the
Seller of the In-house repair as soon as
reasonably practicable.
(ii) Conditions of Authorization
The Buyer will be entitled to the benefits under
this Subclause 12.1.7 for repair of Warranted
Parts:
(a) ***
(b) if the following conditions are satisfied:
(i) only if adequate facilities and
qualified personnel are available
to the Buyer,
(ii) in accordance with the Seller's
written instructions set forth in
documents such as the Aircraft
Maintenance Manual, Component
Maintenance Manual
(Manufacturer), Component
Maintenance Manual (Vendor) and
Structural Repair Manual, and
(iii) only to the extent reasonably
necessary to correct the
defect.
(iii) Seller's Rights
The Seller will have the right to have any
Warranted Part, or any part removed therefrom,
which is claimed to be defective, returned to
the Seller, as set forth in Subclause 12.1.6(i),
if, in the judgment of the Seller, the nature of
the defect requires technical investigation.
Subject to applicable safety rules and the
Buyer's contractual obligations with labor
unions, the Seller will further have the right
to have a representative present as an observer
during the disassembly, inspection and testing
of any Warranted Part claimed to be defective.
Such representatives will not unreasonably
interfere with the Buyer's operation and
personnel.
(iv) In-house Warranty Claim Substantiation
Claims for In-house Warranty credit will be
filed within the time period set forth in and
will contain the same information required in
Warranty Claims under Subclause 12.1.6(iv) and
in addition, to the extent ascertainable, will
include:
(a) a report of technical findings with
respect to the defect,
(b) for parts required to remedy the defect:
- part numbers,
- serial numbers (if applicable),
- description of the parts,
- quantity of parts,
- unit price of parts,
- total price of parts,
- related Seller's or third party's
invoices (if applicable),
(c) detailed number of labor hours,
(d) agreed In-house Warranty Labor Rate
(defined below in Subclause
12.1.7(v)(a)), and
(e) total claim value.
(v) Credit
The Buyer's sole remedy, and the Seller's sole
obligation and liability, in respect of In-house
Warranty claims, will be a credit to the Buyer's
account. The credit to the Buyer's account will
be equal to the direct labor cost expended in
performing a repair and to the direct cost of
materials associated with the repair. Such costs
will be determined as set forth below.
(a) To determine direct labor costs, only
man-hours spent on disassembly,
inspection, repair, reassembly, and
final inspection and test (including
flight tests if flight tests prove
necessary to complete a repair under
the In-house Warranty) of the Warranted
Part will be counted. Man-hours
required for maintenance work
concurrently being carried out on the
Aircraft or Warranted Part will not be
included ***.
The man-hours counted as set forth
above will be multiplied by an agreed
labor rate representing the Buyer's
composite average hourly labor rate
(***, including all ***, social
security charges, business taxes and
similar items, but excluding fringe
benefits) paid to the Buyer's employees
whose jobs are directly related to the
performance of the repair (the
"In-house Warranty Labor Rate"). It is
agreed that for the purpose hereof the
In-house Labor Rate is ***.
(b) Direct material costs are determined by
the prices at which the Buyer acquired
such replacement material, excluding
any parts and materials used for
overhaul furnished free of charge by
the Seller.
(vi) Limitation on Credit
The Buyer will in no event be credited for
repair costs (including labor and material) for
any Warranted Part exceeding sixty-five percent
(65%) of the Seller's current catalog price for
a replacement of such defective Warranted Part
or exceeding those costs which would have
resulted if repairs had been carried out at the
Seller's facilities.
Such cost will be substantiated in writing by
the Seller upon reasonable request by the Buyer.
(vii) Scrapped Material
The Buyer will retain any Warranted Part
defective beyond economic repair and any
defective part removed from a Warranted Part
during repair for a period of either one hundred
and twenty (120) days after the date of
completion of repair or ninety (90) days after
submission of a claim for In-house Warranty
credit relating thereto, whichever is longer.
Such parts will be returned to the Seller within
thirty (30) days of receipt of the Seller's
request to that effect, at the Seller's cost.
Notwithstanding the foregoing, the Buyer may,
with the agreement of the Seller's Field
Representative, scrap any such defective parts
that are beyond economic repair and not required
for technical evaluation.
(viii) LIMITATIONS ON LIABILITY OF SELLER
THE SELLER WILL NOT BE LIABLE FOR ANY RIGHT,
CLAIM OR REMEDY, AND THE BUYER WILL INDEMNIFY
THE SELLER AGAINST THE CLAIMS OF ANY THIRD
PARTIES FOR ANY DEFECT, NONCONFORMANCE OR
PROBLEM OF ANY KIND, ARISING OUT OF OR IN
CONNECTION WITH ANY REPAIR OF WARRANTED PARTS OR
ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER
THIS SUBCLAUSE 12.1.7, INCLUDING BUT NOT LIMITED
TO: (I) LIABILITY IN CONTRACT OR TORT, (II)
LIABILITY ARISING FROM THE BUYER'S ACTUAL OR
IMPUTED NEGLIGENCE, INTENTIONAL TORTS AND/OR
STRICT LIABILITY, AND/OR (III) LIABILITY TO ANY
THIRD PARTIES.
12.1.8 Standard Warranty Transferability
The warranties provided for in this Subclause 12.1 for
any Warranted Part will accrue to the benefit of any
owner, lessor, lessee or operator other than the Buyer,
if the Warranted Part enters into the possession of any
such owner, lessor, lessee or operator as a result of a
sale, transfer, lease or other conveyance or as a result
of a pooling or leasing agreement between such owner,
lessor, lessee or operator and the Buyer (and its
successors and assigns), in accordance with the terms and
subject to the limitations and exclusions of the
foregoing warranties, and to applicable laws or
regulations.
12.1.9 Warranty for Corrected, Replacement or Repaired Warranted
Parts
Whenever any Warranted Part that contains a defect for
which the Seller is liable under Subclause 12.1 has been
corrected, repaired or replaced pursuant to the terms of
this Clause 12, the period of the Seller's warranty with
respect to such corrected, repaired or replacement
Warranted Part, whichever may be the case, will be ***.
In the event that a defect is attributable to a defective
repair or replacement by the Buyer, a Warranty Claim with
respect to such defect will not be allowable,
notwithstanding any subsequent correction or repairs.
12.1.10 Good Airline Operation - Normal Wear and Tear
The Buyer's rights under this Subclause 12.1 are subject
to the Aircraft and each component, equipment, accessory
and part thereof being maintained, overhauled, repaired
and operated in accordance with ***.
The Seller's liability under this Subclause 12.1 will not
extend to normal wear and tear nor, to the extent caused
by any of the following, to:
(i) any Aircraft or component, equipment, accessory
or part thereof that has been repaired, altered
or modified after delivery by a party other than
the Seller or ***;
(ii) any Aircraft or component, equipment, accessory
or part thereof that has been willfully operated
in a damaged state (other than in the case of
operational necessity); or
(iii) any component, equipment, accessory or part from
which the trademark, trade name, part or serial
number or other identification marks have been
removed.
This limitation of the Seller's liability will apply in
the cases of Subclause 12.1.10(i) and Subclause
12.1.10(ii) above only to the extent the Seller submits
sufficient evidence proving that the defect arose from or
was contributed to by either of said cases.
12.2 SELLER SERVICE LIFE POLICY
In addition to the warranties set forth in Subclause 12.1
above, the Seller further agrees that should a Failure
occur in any Item, then, subject to the general
conditions and limitations set forth in Subclause 12.2.4
below, the provisions of this Subclause 12.2 will apply.
12.2.1 Definitions
For the purposes of this Subclause 12.2, the following
definitions will apply:
12.2.1.1 "Item" means any of the Seller components, equipment,
accessories or parts listed in Exhibit "D" hereto which
are installed on an Aircraft at any time during the
period of effectiveness of the Service Life Policy as
defined below in Subclause 12.2.
12.2.1.2 "Failure" means any breakage of, defect in or premature
failure of, an Item that has occurred, or that can
reasonably be expected to occur, based on the Seller's
findings or the experience or expertise of the Buyer or any
other owner or operator of the Seller's aircraft, and that
materially impairs the utility or safety of the Item,
provided that any such breakage of, or defect in, any Item
did not result from any breakage or defect in any other
Aircraft part or component or from any other extrinsic
force, normally covered under hull insurance policy.
12.2.2 Periods and Seller's Undertaking
Subject to the general conditions and limitations set
forth in Subclause 12.2.4 below, the Seller agrees that
if a Failure occurs in an Item within twelve (12) years
after the delivery of said Aircraft to the Buyer, the
Seller will, at its own discretion, as promptly as
practicable and for a price that reflects the Seller's
financial participation as hereinafter provided, either:
12.2.2.1 design and furnish to the Buyer a terminating correction
for such Item subject to a Failure and provide any parts
required for such correction (including Seller designed
standard parts but excluding industry standard parts),
or,
12.2.2.2 replace such Item.
12.2.3 Seller's Participation in the Cost
Any part or Item that the Seller is required to furnish
to the Buyer under this Service Life Policy in connection
with the correction or replacement of an Item will be
furnished to the Buyer at the Seller's current sales
price therefor, less the Seller's financial
participation, which will be determined in accordance
with the following formula:
C (N - T)
-------------
P = N
where
P: financial participation of the Seller,
C: the Seller's then current sales price for the
required Item or required Seller designed parts,
T: total time in months since delivery of the
particular Aircraft in which the Item subject to a
Failure was originally installed, and
N: one hundred and forty-four (144) months.
12.2.4 General Conditions and Limitations
12.2.4.1 Notwithstanding Subclause 12.2.3, the undertakings given
in this Subclause 12.2 will not be valid during the
period applicable to an Item under Subclause 12.1.
12.2.4.2 The Buyer's remedy and the Seller's obligation and
liability under this Service Life Policy are subject to
compliance by the Buyer with the following conditions
precedent:
(i) *** the Buyer will maintain log books and other
historical records with respect to each Item
adequate to enable determination as to whether
the alleged Failure is covered by this Service
Life Policy and, if so, to define the portion of
the cost to be borne by the Seller in accordance
with Subclause 12.2.3 above.
(ii) *** the Buyer will keep the Seller informed of
any significant incidents relating to an
Aircraft, howsoever occurring or recorded.
(iii) The conditions of Subclause 12.1.10 will have
been complied with.
(iv) The Buyer will carry out specific structural
inspection programs for monitoring purposes as
may be established from time to time by the
Seller and the Buyer. Such programs will be
compatible with the Buyer's operational
requirements and will be carried out at ***.
(v) In the case of any breakage or defect, *** after
any breakage or defect in an Item becomes
apparent, whether or not said breakage or defect
can reasonably be expected to occur in any other
Aircraft, and the Buyer will inform the Seller in
sufficient detail about the breakage or defect to
enable the Seller to determine whether said
breakage or defect is subject to this Service Life
Policy, to the extent the Buyer has such
information available.
12.2.4.3 Except as otherwise provided in this Subclause 12.2, any
claim under this Service Life Policy will be administered
as provided in, and will be subject to the terms and
conditions of, Subclause 12.1.6.
12.2.4.4 In the event that the Seller will have issued a
modification applicable to an Aircraft, the purpose of
which is to avoid a Failure, the Seller will offer the
necessary modification kit free of charge or under a
prorata formula established by the Seller. If such a kit
is so offered to the Buyer, then, in respect of such
Failure and any Failures that could ensue therefrom, the
validity of the Seller's commitment under this Subclause
12.2 will be subject to the Buyer's incorporating such
modification in the relevant Aircraft, within a
reasonable time, as promulgated by the Seller and in
accordance with the Seller's instructions.
***
12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY,
PERFORMANCE GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY
AIRCRAFT OR AIRFRAME COMPONENTS TO CONFORM TO NEW
DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN
AND MANUFACTURING ART. THE SELLER'S OBLIGATION UNDER THIS
SUBCLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE
ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN
THIS SUBCLAUSE 12.2. THE BUYER'S SOLE REMEDY AND RELIEF
FOR THE NONPERFORMANCE OF ANY OBLIGATION OR LIABILITY OF
THE SELLER ARISING UNDER OR BY VIRTUE OF THIS SERVICE
LIFE POLICY WILL BE IN MONETARY DAMAGES, LIMITED TO THE
AMOUNT THE BUYER REASONABLY EXPENDS IN PROCURING A
CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE
SUBJECT OF A FAILURE COVERED BY THIS SERVICE LIFE POLICY
AND TO WHICH SUCH NONPERFORMANCE IS RELATED, LESS THE
AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN REQUIRED
TO PAY UNDER THIS SUBCLAUSE 12.2 IN RESPECT OF SUCH
CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING THE
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF
LIABILITY PROVISIONS SET FORTH IN SUBCLAUSE 12.5, THE
BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO
ANY FURTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING LOSS OF PROFITS AND ALL OTHER RIGHTS, CLAIMS
AND REMEDIES, ARISING UNDER OR BY VIRTUE OF THIS SERVICE
LIFE POLICY.
12.3 VENDOR WARRANTIES
12.3.1 Seller's Support
Prior to delivery of the first Aircraft, the Seller will
obtain from all Vendors listed in the Supplier Product
Support Agreements manual enforceable and transferable
warranties, service life policies, and indemnities
against patent infringements for Vendor Parts. The Seller
will also obtain enforceable and transferable Vendor
service life policies from landing gear Vendors for
selected structural landing gear elements. The Seller
undertakes to supply to the Buyer such Vendor warranties,
Vendor service life policies and indemnities against
patent infringements substantially in the form summarized
in the Supplier Product Support Agreements manual.
12.3.2 Vendor's Default
12.3.2.1 In the event that any Vendor under any standard warranty
or indemnity against patent infringements obtained by the
Seller pursuant to Subclause 12.3.1 or Clause 13 hereof
defaults in the performance of any material obligation
under such warranty or indemnity against patent
infringements with respect to a Vendor Part, and the
Buyer submits within a reasonable time to the Seller
reasonable evidence that such default has occurred, then
Subclause 12.1 or Clause 13 of this Agreement will apply
to the extent the same would have been applicable had
such Vendor Part been a Warranted Part except that, for
obligations covered under Subclause 12.1, the shorter of
(i) the Vendor's warranty period as indicated in the
Supplier Product Support Agreements manual and (ii) the
Seller's warranty period as indicated in Subclause 12.1.3
of this Agreement will apply.
12.3.2.2 In the event that any Vendor under any Vendor service
life policy obtained by the Seller pursuant to Subclause
12.3.1 hereof defaults in the performance of any material
obligation with respect thereto, and the Buyer submits
within reasonable time to the Seller reasonable evidence
that such default has occurred, then Subclause 12.2 of
this Agreement will apply to the extent the same would
have been applicable had such component, equipment,
accessory or part been listed in Exhibit "D" hereto.
12.3.2.3 At the Seller's request, the Buyer will assign to the
Seller, and the Seller will be subrogated to, all of the
Buyer's rights against the relevant Vendor, with respect
to and arising by reason of such default and the Buyer
will provide reasonable assistance to enable the Seller
to enforce the rights so assigned.
12.4 INTERFACE COMMITMENT
12.4.1 Interface Problem
If the Buyer experiences any technical problem in the
operation of an Aircraft or its systems due to a
malfunction, the cause of which, after due and reasonable
investigation, is not readily identifiable by the Buyer,
but which the Buyer reasonably believes to be
attributable to the design characteristics of one or more
components of the Aircraft (an "Interface Problem"), the
Seller will, if requested by the Buyer, and without
additional charge to the Buyer, promptly conduct or have
conducted an investigation and analysis of such problem
to determine, if possible, the cause or causes of the
problem and to recommend such corrective action as may be
feasible. The Buyer will furnish to the Seller all data
and information in the Buyer's possession relevant to the
Interface Problem and will reasonably cooperate with the
Seller in the conduct of the Seller's investigations and
such tests as may be required.
At the conclusion of such investigation the Seller will
promptly advise the Buyer in writing of the Seller's
opinion as to the cause or causes of the Interface
Problem and the Seller's recommendations as to corrective
action.
12.4.2 Seller's Responsibility
If the Interface Problem is attributable to the design of
a Warranted Part, the Seller will, if requested by the
Buyer, take prompt action to correct the design of such
Warranted Part, pursuant to the terms and conditions of
Subclause 12.1 or 12.2, as applicable.
12.4.3 Vendor's Responsibility
If the Interface Problem is attributable to the design of
a component, equipment, accessory or part other than a
Warranted Part ("Vendor Component"), the Seller will, if
requested by the Buyer, promptly assist and cooperate
with the Buyer in processing and enforcing any warranty
claim the Buyer may have against the manufacturer of such
Vendor Component. Further, ***.
12.4.4 Joint Responsibility
If the Interface Problem is attributable partially to the
design of a Warranted Part and partially to the design of
any Vendor Component, the Seller will, if requested by
the Buyer, seek a solution to the Interface Problem
through cooperative efforts of the Seller and any Vendor
involved. The Seller will promptly advise the Buyer of
such corrective action as may be proposed by the Seller
and any such Vendor. Such proposal will be consistent
with any then existing obligations of the Seller
hereunder and of any such Vendor to the Buyer. When the
Seller or any Vendor has performed such corrective action
to the reasonable satisfaction of the Buyer, such
correction will constitute full satisfaction of any claim
the Buyer may have against either the Seller or any such
Vendor with respect to such Interface Problem.
12.4.5 All requests under this Subclause 12.4 will be directed
to the Seller.
12.5 Performance Standard
The Seller will take prompt action to perform its
obligations under this Clause 12. ***
12.6 EXCLUSIVITY OF WARRANTIES AND
GENERAL LIMITATIONS OF LIABILITY
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS AND RELATED
LETTER AGREEMENTS) SETS FORTH THE EXCLUSIVE WARRANTIES,
EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE
BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING
FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND
IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR
SERVICE DELIVERED UNDER THIS AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS CLAUSE 12 (AND RELATED LETTER
AGREEMENTS) ARE ADEQUATE AND SUFFICIENT TO PROTECT THE
BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY
KIND IN THE GOODS AND SERVICES SUPPLIED UNDER THIS
AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES
AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS,
CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER,
WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR
STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY
NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY
AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR
SERVICE DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO, UNLESS OTHERWISE PROVIDED FOR IN THIS CLAUSE
12 (AND RELATED LETTER AGREEMENTS):
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY
THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING,
BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR
NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS,
WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE
UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR
FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY
INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR
AGENCY;
(6) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE
COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS
AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT
BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE
BUYER. IN THE EVENT THAT ANY PROVISION OF THIS CLAUSE 12
(AND RELATED LETTER AGREEMENTS) SHOULD FOR ANY REASON BE
HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER
OF THIS CLAUSE 12 (AND RELATED LETTER AGREEMENTS) WILL
REMAIN IN FULL FORCE AND EFFECT.
12.7 DUPLICATE REMEDIES
THE REMEDIES PROVIDED TO THE BUYER UNDER THIS CLAUSE 12
(AND RELATED LETTER AGREEMENTS) AS TO ANY DEFECT IN
RESPECT OF THE AIRCRAFT OR ANY PART THEREOF ARE NOT
CUMULATIVE. THE BUYER WILL BE ENTITLED TO THE ONE REMEDY
THAT PROVIDES THE MAXIMUM BENEFIT TO IT, AS THE BUYER MAY
ELECT, PURSUANT TO THE TERMS AND CONDITIONS OF THIS
CLAUSE 12 (AND RELATED LETTER AGREEMENTS) FOR ANY SUCH
PARTICULAR DEFECT FOR WHICH REMEDIES ARE PROVIDED UNDER
THIS CLAUSE 12 (AND RELATED LETTER AGREEMENTS); PROVIDED,
HOWEVER, THAT, *** THE BUYER WILL NOT BE ENTITLED TO
ELECT A REMEDY UNDER ONE PART OF THIS CLAUSE 12 (AND
RELATED LETTER AGREEMENTS) THAT CONSTITUTES A DUPLICATION
OF ANY REMEDY ELECTED BY IT UNDER ANY OTHER PART HEREOF
FOR THE SAME DEFECT.
THE BUYER'S RIGHTS AND REMEDIES HEREIN *** ARISING UNDER
THESE WARRANTIES *** COVERED BY THIS CLAUSE 12 (AND
RELATED LETTER AGREEMENTS).
UNQUOTE
IN CONSIDERATION OF THE ASSIGNMENT AND SUBROGATION BY THE
SELLER UNDER THIS CLAUSE 12 (AND RELATED LETTER
AGREEMENTS) IN FAVOR OF THE BUYER IN RESPECT OF THE
SELLER'S RIGHTS AGAINST AND OBLIGATIONS TO THE
MANUFACTURER UNDER THE PROVISIONS QUOTED ABOVE, THE BUYER
HEREBY ACCEPTS SUCH ASSIGNMENT AND SUBROGATION AND AGREES
TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND
LIMITATIONS THEREIN CONTAINED, SPECIFICALLY INCLUDING,
WITHOUT LIMITATION, THE EXCLUSIVITY OF WARRANTIES AND
GENERAL LIMITATIONS OF LIABILITY PROVISIONS AND DUPLICATE
REMEDIES PROVISIONS.
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS AND RELATED
LETTER AGREEMENTS) SETS FORTH THE EXCLUSIVE WARRANTIES,
EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE
BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING
FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND
IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR
SERVICE DELIVERED UNDER THIS AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS CLAUSE 12 (AND RELATED LETTER
AGREEMENTS) ARE ADEQUATE AND SUFFICIENT TO PROTECT THE
BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY
KIND IN THE GOODS AND SERVICES SUPPLIED UNDER THIS
AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES
AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS,
CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER,
WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR
STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY
NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY
AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR
SERVICE DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO, UNLESS OTHERWISE PROVIDED FOR IN THIS CLAUSE
12 (AND RELATED LETTER AGREEMENTS):
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY
THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING,
BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR
NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS,
WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE
UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR
FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY
INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR
AGENCY;
(6) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE
COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS
AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT
BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE
BUYER. IN THE EVENT THAT ANY PROVISION OF THIS CLAUSE 12
(AND RELATED LETTER AGREEMENTS) SHOULD FOR ANY REASON BE
HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER
OF THIS CLAUSE 12 (AND RELATED LETTER AGREEMENTS) WILL
REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyer under this Clause 12
(and related Letter Agreements) as to any defect in
respect of the Aircraft or any part thereof are not
cumulative. The Buyer will be entitled to the one remedy
that provides the maximum benefit to it, as the Buyer may
elect, pursuant to the terms and conditions of this
Clause 12 (and related Letter Agreements) for any such
particular defect for which remedies are provided under
this Clause 12 (and related Letter Agreements); provided,
however, that, *** the Buyer will not be entitled to
elect a remedy under one part of this Clause 12 (and
related Letter Agreements) that constitutes a duplication
of any remedy elected by it under any other part hereof
for the same defect. The Buyer's rights and remedies
herein *** arising under these warranties *** covered by
this Clause 12 (and related Letter Agreements).
12.8 SURVIVABILITY
In respect of all delivered Aircraft, the provisions of
this Clause 12 (and related Letter Agreements) will
survive any termination of this Agreement.
13 - PATENT INDEMNITY
The Seller, in its capacity as "Buyer" under its
arrangements with the Manufacturer, has negotiated and
obtained the following Patent Indemnity from the
Manufacturer with respect to the Aircraft, subject to the
terms, conditions, limitations and restrictions
(including, but not limited to, the waiver, release and
renunciation provision) all as hereinafter set out. The
Seller hereby guarantees to the Buyer the performance by
the Manufacturer of the Manufacturer's obligations and
assigns to the Buyer, and the Buyer hereby accepts, all
of the rights and obligations of the Seller in the
Seller's capacity as "Buyer" as aforesaid under the said
Patent Indemnity and the Seller subrogates the Buyer into
all such rights and obligations in respect of the
Aircraft. The Seller hereby warrants to the Buyer that
the Seller has all requisite authority to make the
foregoing assignment and effect the foregoing subrogation
to and in favor of the Buyer and that the Seller will not
enter into any amendment of the provisions so assigned
without the prior written consent of the Buyer.
Capitalized terms utilized in the following provisions
have the meanings assigned thereto in this Agreement,
except that the term "Seller" refers to the Manufacturer
and the term "Buyer" refers to the Seller and
cross-references herein refer to Clauses and Exhibits in
this Agreement or to Paragraphs in any Letter Agreement
hereto.
QUOTE
13.1 Scope
The Seller will indemnify the Buyer from and against any
damages, costs and expenses including reasonable legal
costs (excluding damages, costs, expenses, loss of
profits and other liabilities in respect of or resulting
from loss of use of any Aircraft) in case of any actual
or alleged infringement by any Aircraft or any Warranted
Part or the use thereof of
(i) any British, French, German, Spanish or US
patent, or
(ii) any patent issued under the laws of any other
country in which the Buyer may lawfully operate
the Aircraft, provided that
(a) from the time of design of such
Aircraft, accessory, equipment or part
and until infringement claims are
resolved, such country and the flag
country of the Aircraft is each a party
to the Chicago Convention on
International Civil Aviation of
December 7, 1944, and is bound by and
entitled to all benefits of Article 27
thereof,
or in the alternative,
(b) from such time of design and until
infringement claims are resolved, such
country and the flag country of the
Aircraft is each a party to the
International Convention for the
Protection of Industrial property of
March 20, 1883 (known as the "Paris
Convention").
The Seller's undertaking under this Clause 13 will not
apply to components, accessories, equipment or parts
which are not Warranted Parts.
13.2 Seller's Action
Should the Buyer be enjoined (temporarily or permanently)
from using any part of an Aircraft by reason of actual or
alleged infringement of a patent covered by Subclause
13.1, the Seller will as soon as practicable, after good
faith consultation with the Buyer and at the Seller's
expense, either (i) procure for the Buyer the right to
use such part free of any liability for patent
infringement or (ii) as soon as possible replace such
part with a non-infringing substitute otherwise complying
with the requirements of this Agreement.
13.3 Seller's Obligation
The Seller's obligation hereunder with respect to any
actual or alleged infringement is conditioned upon
commencement of suit against the Buyer for infringement
or the Buyer's receipt of a written claim alleging
infringement, and upon written notice by the Buyer to the
Seller within ten (10) days after receipt by the Buyer of
notice of the institution of such suit or claim, giving
particulars thereof. The Seller will have the option but
not the obligation at any time to conduct negotiations
with the party or parties charging infringement and may
intervene in any suit commenced. Whether or not the
Seller intervenes in any such suit, it will be entitled
at any stage of the proceedings to assume, conduct or
control the defense thereof.
The Seller's obligation hereunder with respect to any
actual or alleged infringement is also conditioned upon
(i) the Buyer's promptly furnishing to the Seller all the
data, papers, records and other assistance within the
control of the Buyer material to the resistance of or
defense against any such charge or suits for
infringement, (ii) the Buyer's use of diligent efforts in
full cooperation with the Seller to reduce royalties,
damages, costs and expenses involved, (iii) the Seller's
prior approval of the Buyer's payment, assumption or
admission of any liabilities, expenses, costs or
royalties for which the Seller is asked to respond and
(iv) the Buyer's not otherwise acting in a manner
prejudicial to its or the Seller's defense of the action.
13.4 WAIVER
THE INDEMNITY PROVIDED IN THIS CLAUSE 13 AND THE
OBLIGATIONS AND LIABILITIES OF THE SELLER UNDER THIS
CLAUSE 13 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE
BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER
INDEMNITIES, WARRANTIES, OBLIGATIONS, GUARANTEES AND
LIABILITIES ON THE PART OF THE SELLER AND RIGHTS, CLAIMS
AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT
LIMITATION ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY ARISING FROM OR WITH RESPECT TO LOSS OF USE OR
REVENUE OR CONSEQUENTIAL DAMAGES), WITH RESPECT TO ANY
ACTUAL OR ALLEGED PATENT INFRINGEMENT OR THE LIKE BY ANY
AIRCRAFT, ACCESSORY, EQUIPMENT OR PART, OR THE USE OR
SALE THEREOF, PROVIDED THAT, IN THE EVENT THAT ANY OF THE
AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD
UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS
SUBCLAUSE 13.4 WILL REMAIN IN FULL FORCE AND EFFECT. THIS
PATENT INDEMNITY WILL NOT BE EXTENDED, ALTERED OR VARIED
EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND
THE BUYER.
UNQUOTE
In consideration of the assignment and subrogation by the
Seller under this Clause 13 in favor of the Buyer in
respect of the Seller's rights against and obligations to
the Manufacturer under the provisions quoted above, the
Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and
limitations therein contained (specifically including,
without limitation, the waiver, release and renunciation
provision).
THE INDEMNITY PROVIDED IN THIS CLAUSE 13 AND THE
OBLIGATIONS AND LIABILITIES OF THE SELLER UNDER THIS
CLAUSE 13 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE
BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER
INDEMNITIES, WARRANTIES, OBLIGATIONS, GUARANTEES AND
LIABILITIES ON THE PART OF THE SELLER AND RIGHTS, CLAIMS
AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT
LIMITATION ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY ARISING FROM OR WITH RESPECT TO LOSS OF USE OR
REVENUE OR CONSEQUENTIAL DAMAGES), WITH RESPECT TO ANY
ACTUAL OR ALLEGED PATENT INFRINGEMENT OR THE LIKE BY ANY
AIRCRAFT, ACCESSORY, EQUIPMENT OR PART, OR THE USE OR
SALE THEREOF, PROVIDED THAT, IN THE EVENT THAT ANY OF THE
AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD
UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS
CLAUSE WILL REMAIN IN FULL FORCE AND EFFECT. THIS PATENT
INDEMNITY WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT
BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE
BUYER.
13.5 SURVIVABILITY
In respect of all delivered Aircraft, the provisions of
this Clause 13 will survive any termination of this
Agreement.
14 - TECHNICAL PUBLICATIONS
14.1 Scope
The Seller will provide the Buyer or cause the Buyer to
be provided with a set of technical publications to
support the operation of the Aircraft in accordance with
the terms set forth in this Clause 14 (the "Technical
Publications"). Such Technical Publications are listed in
Exhibit "F" of this Agreement together with the form,
type, format and quantity of each such Technical
Publication.
14.2 Specification
14.2.1 The Technical Publications are prepared according to
applicable ATA specifications. Exhibit "F" references the
relevant ATA specification for each affected Technical
Publication.
14.2.2 Technical Publications will be customized as indicated in
Exhibit "F." The Seller will provide ***.
14.2.3 Technical Publications at delivery of the Aircraft will
correspond to the Specifications of the Aircraft as
defined at least six (6) months before such delivery. The
Seller will continuously monitor technological and ATA
specification developments and apply them to the
production and method of transmission of Technical
Publications.
14.3 Delivery
The Technical Publications and corresponding revisions
that the Seller will supply or cause to be supplied in
accordance with the terms of this Clause 14 will be sent
to one address only, as defined by the Buyer.
The quantities of the Technical Publications to be
delivered on or before the delivery of the first Aircraft
will be mutually agreed. The Seller will send or cause to
be sent additional quantities of Technical Publications
as required by the Buyer upon thirty (30) days' prior
notice.
Technical Publications and their revisions will be
shipped by the quickest transportation methods. The
shipments ***.
14.4 Language
The Technical Publications (including drawings) will be
supplied in the English language using aeronautical
terminology in common use.
14.5 Revision Service
14.5.1 General
Unless otherwise specifically stated, ***.
14.5.2 Service Bulletins
Service Bulletin (SB) information will be incorporated
into the Technical Publications after notice from the
Buyer of embodiment of a Service Bulletin. The split
effectivity for the corresponding Service Bulletin will
remain in the Technical Publications until notification
from the Buyer that embodiment of such Service Bulletin
has been completed for all the Aircraft.
14.5.3 Customer Originated Changes
14.5.3.1 Buyer-originated data documented in the Buyer's own
Request for Publication Change ("Customer Originated
Changes" or "COC") may be introduced into the following
customized Technical Publications:
(i) Aircraft Maintenance Manual
(ii) Illustrated Parts Catalog
(iii) Trouble Shooting Manual
(iv) Wiring Manual (Schematics, Wirings, Lists)
14.5.3.2 The Buyer will issue COC in accordance with the
provisions of the "Guidelines for Customer Originated
Changes" issued by the Seller and will label such data
"COC."
14.5.3.3 The Seller will use all reasonable efforts to introduce
the COC into the relevant Technical Publications as soon
as possible following the receipt of complete and
accurate data for processing, but no later than two (2)
revisions after submission of the COC.
14.5.3.4 COC data will be incorporated by the Seller in all
affected customized Technical Publications, unless the
Buyer specifies in writing to the Seller into which
Technical Publications the COC data will be incorporated.
The customized Technical Publications into which the COC
data are incorporated will only show the Aircraft
configuration that reflects the COC data and not the
configuration before incorporation of such COC data.
14.5.3.5 The Buyer hereby acknowledges and accepts that the
incorporation of any COC into the Technical Publication
issued by or caused to be issued by the Seller will be
entirely at the Buyer's risk. Accordingly, the Seller
will be under no liability whatsoever in respect of
either the engineering contents of any COC, including any
omissions or inaccuracies therein, or the effect that
incorporation of such COC may have on the Technical
Publications.
14.5.3.6 The Seller will not be required to check any COC data
submitted for incorporation as aforementioned, and the
Buyer will ensure that all COC data submitted for
incorporation into a Technical Publication have received
prior approval from its local airworthiness authority.
14.5.3.7 IN THE EVENT THAT THE SELLER AND/OR THE MANUFACTURER IS
REQUIRED UNDER ANY COURT ORDER OR SETTLEMENT TO INDEMNIFY
IN WHOLE OR IN PART ANY THIRD PARTY FOR INJURY, LOSS OR
DAMAGE INCURRED DIRECTLY OR INDIRECTLY AS A RESULT OF
INCORPORATION OF ANY COC INTO THE TECHNICAL PUBLICATIONS
ISSUED OR CAUSED TO BE ISSUED BY THE SELLER, THE BUYER
AGREES TO DEFEND, INDEMNIFY OR HOLD HARMLESS THE SELLER
AND/OR THE MANUFACTURER FOR ALL PAYMENTS OR SETTLEMENTS
MADE IN RESPECT OF SUCH INJURY, LOSS OR DAMAGE INCLUDING
ANY EXPENSES INCURRED BY THE SELLER AND/OR THE
MANUFACTURER IN DEFENDING SUCH CLAIMS, PROVIDED THAT THE
BUYER IS PROVIDED AN OPPORTUNITY TO ASSUME THE DEFENSE
AND/OR A SETTLEMENT OF SUCH CLAIM. THIS INDEMNIFICATION
BY THE BUYER WILL IN NO EVENT BE AFFECTED BY ANY WRITTEN
OR ORAL COMMUNICATION THAT THE SELLER OR THE MANUFACTURER
MAY MAKE TO THE BUYER IN RESPECT OF SUCH DOCUMENTATION.
14.5.3.8 The price for the incorporation of any COC as aforesaid
will be invoiced to the Buyer under conditions specified
in the Seller's then current Support Services Price
Catalog. ***
14.6 Vendor Equipment
14.6.1 Information relating to Vendor equipment that is
installed on the Aircraft by the Seller will be included
free of charge in the basic issue of the Technical
Publications, to the extent necessary for the
understanding of the systems concerned.
14.6.2 The Buyer will supply or cause to be supplied to the
Seller the data related to Buyer Furnished Equipment and
Seller Furnished Equipment not covered in the Seller's
standard Seller Furnished Equipment definition at least
six (6) months before the scheduled delivery of the
customized Technical Publications.
14.6.3 The Seller will introduce into the basic issue of the
Technical Publications the data related to Buyer
Furnished Equipment and Seller Furnished Equipment, at no
charge to the Buyer.
14.7 Aircraft Identification for Technical Publications
For the customized Technical Publications the Buyer
agrees to the allocation of Fleet Serial Numbers from 001
up to 999. The sequence will be interrupted only if two
(2) different Propulsion Systems manufacturers are
selected and/or different aircraft models are chosen.
The Buyer will indicate to the Seller the Fleet Serial
Number allocated to the Aircraft Manufacturer's Serial
Number within forty-five (45) days after execution of
this Agreement. The allocation of Fleet Serial Numbers to
Manufacturer's Serial Numbers will not constitute any
proprietary, insurable or other interest whatsoever of
the Buyer in any Aircraft prior to delivery of and
payment for such Aircraft as provided in this Agreement.
The relevant customized Technical Publications are:
(i) Aircraft Maintenance Manual
(ii) Illustrated Parts Catalog
(iii) Trouble Shooting Manual
(iv) Wiring Manuals (Schematics, Wirings, Lists)
14.8 Airworthiness Authority
It will be the responsibility of the Buyer to provide its
local airworthiness authority with such Technical
Publications as it may require, using the Technical
Publications delivered by the Seller to the Buyer in
accordance with the terms hereof.
14.9 Additional Requirements
If feasible the Seller will comply with the Buyer's
request to change the form, quantity, type and/or
revisions of any of the data specified in Exhibit "F,"
upon receipt of the Buyer's purchase order. The charges
for such changes will be invoiced to the Buyer under
conditions specified in the Seller's then current Support
Services Price Catalog.
14.10 Future Developments
The Seller will continuously monitor technological
developments and apply them to document production and
method of transmission where beneficial and economical.
14.11 Proprietary Rights
14.11.1 All proprietary rights, including but not limited to
patent, design and copyrights, relating to Technical
Publications and data supplied under this Agreement, will
remain with the Seller. All such Technical Publications
and data are supplied to the Buyer for the sole use of
the Buyer, who undertakes not to divulge the contents
thereof to any third party save as permitted therein, or
as provided in Subclause 14.11.2, or otherwise pursuant
to any governmental or legal requirement imposed upon the
Buyer. These proprietary rights will also apply to any
translation into a language or languages or media that
may have been performed or caused to be performed by the
Buyer.
14.11.2 This Agreement does not restrict the Buyer from using any
Technical Publications or data supplied by the Seller for
the purpose of maintenance, repair or modification of
Aircraft. Upon the Buyer's resale or lease of any
Aircraft, the purchaser or lessee of such Aircraft may
***, provided that such purchaser or lessee ***. The
Buyer will furnish to the Seller ***.
14.11.3 Drawings of the Manufacturer are provided to the Buyer
under the express condition that the Manufacturer will
have no liability, whether in contract or tort, arising
from or in connection with the use of a drawing of the
Manufacturer by the Buyer.
14.11.4 In the event that the Seller has authorized the
disclosure to third parties, either under this Agreement
or by express written authorization, the Buyer will
undertake to bind such third party to the same conditions
and restrictions as the Buyer with respect to such
disclosure, as set forth in this Subclause 14.11.
14.12 Warranties as to Technical Publications
The Seller warrants that the Technical Publications are
prepared in accordance with the state of the art at the
date of their conception. Should a Technical Publication
prepared by the Seller contain errors or omissions, the
sole and exclusive liability of the Seller will be, at
its option, to correct or replace such Technical
Publication. Any such correction or replacement will
occur ***. Notwithstanding the above, no warranties of
any kind are given for the Customer Originated Changes,
as set forth in Subclause 14.5.3. The Exclusivity of
Warranties and General Limitations of Liability
provisions of Subclause 12.6 of this Agreement will apply
to all Technical Publications.
15 - CUSTOMER ASSISTANCE
15.1 Field Assistance
15.1.1 The Seller will provide or cause to be provided at no
charge to the Buyer the following services at the Buyer's
main base or at locations to be designated by the Buyer.
15.1.2 The Seller will provide Resident Customer Support
Representatives acting in an advisory capacity at the
Buyer's main base ***. The actual number of Resident
Customer Support Representatives allocated to the Buyer
will be mutually agreed.
15.1.3 If requested by the Buyer, the Seller will arrange for
similar services to be procured by competent
representatives of the Propulsion Systems manufacturer
and, by representatives of Vendors (other than Vendors of
Buyer Furnished Equipment).
15.2 Customer Support Director
The Seller will provide one (1) Customer Support Director
based in Herndon, Virginia, to liaise between the
Manufacturer and the Buyer on product support matters
after execution of this Agreement for as long as any of
the Aircraft is operated by the Buyer.
15.3 Buyer's Service
For as long as the Resident Customer Support
Representative(s) specified in Subclause 15.1.1 above
remain(s) with the Buyer, the Buyer will furnish without
charge, suitable office space, office equipment and
facilities in or conveniently near the Buyer's
maintenance facilities. The Buyer will provide
telecommunications facilities at the Seller's cost to be
invoiced on a monthly basis.
15.4 Advisory Capacity
In providing the technical services contemplated by this
Agreement, all of the Seller's, Manufacturer's and
Associated Contractors, and any of their employees,
representatives, or agents are deemed to be acting in an
advisory capacity only and at no time will they be deemed
to be acting, either directly or indirectly, as the
agents or employees of the Buyer.
15.5 Temporary Assignment of Customer Support Representative
The Buyer agrees that the Seller will have the right upon
notice to and consultation with the Buyer to transfer or
recall any Customer Support Representative(s) on a
temporary or permanent basis. The Buyer will receive
credit for the man-days during which any Customer Support
Representative is absent from the Buyer's facility
pursuant to this Subclause 15.5.
15.6 INDEMNITY AND INSURANCE
15.6.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 15, THE BUYER AND THE SELLER PROVIDE THE
INDEMNITIES SET FORTH IN SUBCLAUSES 15.6.2 AND 15.6.3.
15.6.2 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER,
THE MANUFACTURER, ASC AND EACH OF THE ASSOCIATED
CONTRACTORS AND THEIR RESPECTIVE SUBCONTRACTORS AND THEIR
RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES,
LOSSES, LOSS OF USE, COSTS AND EXPENSES
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS
(EXCEPTING INJURIES TO AND DEATHS OF THE
SELLER'S REPRESENTATIVES PROVIDING THE SERVICES
UNDER THIS CLAUSE) CAUSED BY THE SELLER OR ITS
REPRESENTATIVES, AND
(II) FOR LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING
LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S
SAID REPRESENTATIVES), CAUSED BY THE SELLER OR
ITS REPRESENTATIVES.
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF
SERVICES UNDER THIS CLAUSE 15.
THIS INDEMNITY OF THE BUYER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING
OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE SELLER'S, THE MANUFACTURER'S OR ANY OF
THE ASSOCIATED CONTRACTORS' OR THEIR RESPECTIVE
SUBCONTRACTORS' OR THEIR RESPECTIVE OFFICERS', AGENTS' OR
EMPLOYEES' SAID REPRESENTATIVES.
15.6.3 SELLER'S INDEMNITY
THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER,
ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND
AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND
EXPENSES
(I) FOR INJURIES TO OR DEATHS OF THE SELLER'S SAID
REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS
CLAUSE,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S
SAID REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT
OR GROSS NEGLIGENCE OF THE SELLER'S SAID
REPRESENTATIVES.
WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE PRECEDING
SENTENCE, THE SELLER WILL NOT BE OBLIGATED TO INDEMNIFY
OR HOLD HARMLESS THE BUYER WHERE THE SELLER'S
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE
FROM THE BUYER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
15.6.4 CLAIMS
IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT
AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR
INJURY OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH
HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS
SUBCLAUSE 15.6, THE FORMER (INDEMNITEE) WILL PROMPTLY
GIVE NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE
INDEMNITOR WILL HAVE THE RIGHT TO INVESTIGATE, AND THE
RIGHT IN ITS SOLE DISCRETION TO ASSUME AND CONDUCT THE
DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE,
SUCH DEFENSE, SETTLEMENT OR COMPROMISE INVOLVES THE
POTENTIAL IMPOSITION OF CRIMINAL LIABILITY ON THE
INDEMNITEE OR A CONFLICT OF INTEREST BETWEEN THE
INDEMNITOR AND THE INDEMNITEE, THE INDEMNITOR WILL NOT BE
ENTITLED TO ASSUME AND CONDUCT THE DEFENSE OF ANY SUCH
CLAIM, ACTION, PROCEEDING OR LAWSUIT. THE INDEMNITEES
WILL BE ENTITLED, AT THEIR OWN EXPENSE, ACTING THROUGH
ONE (1) COUNSEL, TO PARTICIPATE IN ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT THE DEFENSE OF WHICH HAS BEEN
ASSUMED BY THE INDEMNITOR PURSUANT TO THE PRECEDING
PROVISIONS, PROVIDED, THAT SUCH PARTICIPATION DOES NOT,
IN THE REASONABLE OPINION OF INDEPENDENT COUNSEL OF THE
INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DEFENSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT
OR COMPROMISE WILL BE ENTERED INTO WITHOUT THE PRIOR
WRITTEN CONSENT OF THE INDEMNITEE, WHICH CONSENT WILL NOT
BE UNREASONABLY WITHHELD OR DELAYED. EACH INDEMNITEE WILL
COOPERATE WITH THE INDEMNITOR IN THE INVESTIGATION AND
CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION, PROCEEDING
OR LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND
CONDUCT THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE
INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH THE
DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE
AND WILL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY
JUDGMENTS, SETTLEMENTS, COSTS OR EXPENSES INCURRED IN
CONDUCTING SAID DEFENSE. FOR THE PURPOSE OF THIS
SUBCLAUSE 15.6, A CLAIM OR LAWSUIT AGAINST THE
MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL
BE DEEMED TO BE A CLAIM OR LAWSUIT AGAINST THE SELLER.
15.6.5 INSURANCE
FOR THE PERIOD OF PERFORMANCE DESCRIBED IN THIS CLAUSE,
THE BUYER WILL
(I) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSE OR
SUBROGATION AGAINST THE SELLER, THE MANUFACTURER
AND ASC, AND EACH OF THE ASSOCIATED CONTRACTORS
AND THEIR RESPECTIVE SUBCONTRACTORS AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES AND SUBCONTRACTORS IN RESPECT OF ALL
RISKS HULL INSURANCE POLICY, AND
(II) EFFECT INSURANCE TO COVER THIRD-PARTY LIABILITY
RISKS ARISING DURING SAID PERFORMANCE IN AN
AMOUNT SATISFACTORY TO THE SELLER, NAMING THE
SELLER AND ITS DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES AS ADDITIONAL INSURED.
SUCH INSURANCE WILL CONTAIN A CROSS-LIABILITY CLAUSE AND
WILL ALSO CONTAIN A THIRTY (30)-DAY NOTICE-OF-CANCELLATION
PROVISION. UPON REQUEST, THE BUYER WILL DELIVER TO THE
SELLER A CERTIFICATE OF INSURANCE EVIDENCING THE
COVERAGE REQUIRED BY THIS CLAUSE.
16 - TRAINING
16.1 Scope
The Seller will provide or cause to be provided for the
Buyer's personnel training described in this Clause 16
("Training").
16.2 Course Organization and Administration
16.2.1 Location and Scheduling
In general, Training will be held either at the Airbus
Service Company Training Center, in Miami, Florida (the
"ATC-Miami"), or at the Airbus Training Center in
Toulouse, France (the "ATC-Toulouse"). Subject to
availability of training slots at the time and at the
selected location, the location of the Training will be
at the Buyer's choice. The Seller will ensure that the
Buyer's training plans (to be provided to the Seller
reasonably in advance of the delivery of Aircraft) are
implemented for a safe and smooth entry-into-service of
the Aircraft. However, certain Training courses may also
be held at the Buyer's base or other location, if
practicable, under terms and conditions to be mutually
agreed. The Buyer's training plans will include: (i)
just-in-time (determined on a reasonable basis) training
of flight crews, (ii) all necessary simulator time for
regular transition courses, and (iii) aircraft experience
for check pilots, and (iv) maintenance, dispatch and
flight attendant training.
Training courses will be scheduled for a minimum and
maximum number of participants, at dates mutually agreed
during a training conference to be held as soon as
practicable (the "Training Conference").
16.2.2 Course Content
Training courses will include features of the
Specifications required for training purposes, as known
at the latest six (6) months before the first Training
course starts. The Seller will endeavor to incorporate
training features that become known after the six-month
deadline. When the Seller does not provide maintenance or
flight attendant training on the Seller's approved Buyer
Furnished Equipment, the Seller will ensure that the
Buyer gets the relevant training support from the
supplier of the said equipment. Training courses will be
FAA approved "Transition Courses." The Seller will
provide the Buyer with A330/A340 differences training for
flight crew, maintenance, dispatch and/or flight
attendant personnel.
Training equipment used for flight and maintenance crew
training will reflect the Specifications as closely as
possible and will meet requirements to receive and
maintain the relevant FAA course approval. Maintenance
training will not assume prior knowledge of any Airbus
aircraft. The Seller will be responsible for all Training
course syllabi, training aids, equipment and materials.
16.2.3 Course Guidelines
Courses are designed and approved to bring jet transport
specialists to a professional knowledge of the Aircraft
and satisfy FAA requirements for training and checking.
The Seller will use reasonable efforts to satisfy the
Buyer's requirements and policies regarding training.
In addition:
(i) Training will be conducted in English, and all
training materials are written in English using
common aeronautical terminology.
(ii) Pilot trainees will have the prerequisite jet
transport category experience defined in
Appendix "A" to this Clause 16.
(iii) Avionics courses (listed in Appendix "B" to this
Clause 16) are designed for avionics specialists
knowledgeable of ARINC 429 liaisons.
(iv) The Buyer will give the Seller a list of
trainees enrolling in each Training course.
(v) The Seller will not be liable for the
unsatisfactory performance of individual
trainees for any reason solely and directly
outside the Seller's control.
(vi) The Seller will consult with the Buyer if the
Seller finds that a trainee lacks entry-level
knowledge. After such consultation, the trainee
will either be cycled through an entry-level
training program or be withdrawn from the
Training course. All costs associated with such
entry-level program and with the cancellation of
the scheduled transition training will be
charged to the Buyer's account.
(vii) The Seller will give all trainees who
satisfactorily complete Training courses a
certificate of completion including the
instructor's name and identification number.
This certificate will not represent authority or
qualification by any official civil aviation
authority, although it may be presented to such
authority as an attestation of completion of the
Seller's training courses.
(viii) An extension in duration, a repetition or a
deviation from the standard of any course to be
given or in progress (for reasons due to the
Buyer, including, but not limited to,
unsatisfactory performance of the trainees) will
be provided on the Buyer's request and/or on the
Seller's advice and subject to mutual agreement.
The Seller will provide an extension in the
duration of the Training, if necessary, to
satisfactorily complete the flight Training
courses. ***
16.2.4 Additional Training
Besides the free-of-charge Training courses provided
pursuant to Subclause 16.3, the Seller will offer
additional training courses and training services at the
Buyer's expense, subject to availability.
16.2.5 Training at the Buyer's Base
16.2.5.1 At the Buyer's request, and if practicable, the Training
will be provided by the Seller's instructors at any
location other than ATC-Miami or ATC-Toulouse. The Buyer
will *** any expenses related to the assignment of the
Seller's instructors and the performance of their duties.
The Buyer may provide the Seller with air travel for the
Seller's instructors to and from ATC-Miami or
ATC-Toulouse, as applicable, and the place of assignment.
16.2.5.2 The Training equipment necessary for course performance
on the Buyer's request at any location other than
ATC-Miami or ATC-Toulouse will be provided by the Buyer
in accordance with the Seller's specifications. In the
event the Buyer cannot make available the relevant
equipment, the Seller will use reasonable efforts to
provide this equipment and send it by air from Miami,
Florida, or Toulouse, France, to the course location and
back to Miami, Florida, or Toulouse, France, at the
Buyer's expense.
16.2.6 Practical Training on Aircraft
16.2.6.1 [INTENTIONALLY LEFT BLANK]
16.2.6.2 Any *** Flight Crew Training involving the use of an
aircraft will be done on the Buyer's delivered Aircraft.
Should the Buyer require on-aircraft Flight Crew Training
to be done before delivery of the first Aircraft, then
(i) the Seller will help the Buyer find a substitute
aircraft, and
(ii) ***.
When on-aircraft Flight Crew Training is performed at
ATC-Toulouse, the Seller will provide free-of-charge line
maintenance, including servicing, preflight checks and
changing of minor components for the contractual training
sessions. In the case that the training is performed on
the Buyer's aircraft, the Buyer will provide a mutually
agreed batch of spare parts as required to support said
training and will bear all other expenses such as fuel,
oil and landing fees. In the event that the Seller is not
able to provide sufficient simulator time to train the
Buyer's crews, and it becomes necessary to use the
Aircraft instead, the Seller will compensate the Buyer US
$*** (US dollars-***) per flight hour.
Finally, the Buyer will meet the requirement for a
certificate of insurance set forth below in Subclause
16.6.5.
16.2.7 Buyer's Personnel Transportation
When flight crew, flight attendant, dispatch and
maintenance Training is done at ATC-Toulouse, the Seller
will provide free-of-charge local transportation by bus
for the Buyer's trainees to and from designated pick-up
points and the training center. The Seller will also
provide each flight crew with a rental car (with
unlimited mileage, the Buyer paying for gas) or taxi
transportation at the end of ground school to enable
crews to attend either simulator or flight sessions.
When training is done at ATC-Miami, the Seller will
provide a free-of-charge rental car (with unlimited
mileage, the Buyer paying for gas) or taxi transportation
for all of the Buyer's trainees, at the beginning of the
Training course. Due to local laws, the Buyer's trainees
must be over twenty-one (21) years of age to drive rental
cars.
16.2.8 Duration
The Training allowances provided in Subclause 16.3 will
be available ***.
16.3 Training Courses
16.3.1 Flight Crew Courses
16.3.1.1 Flight Crew Transition Course
The Seller will train free of charge *** flight crews
(each of which consists of a captain and a first officer)
per delivered Aircraft in accordance with the Buyer's
operational requirements. The courses will be either the
standard A330/A340 Flight Crew Transition course or, at
the election of the Buyer, the X000/X000/X000 Xxxxx-Xxxx
Qualification ("CCQ") course for the pilots transitioning
from the A319 and/or A320 aircraft. The training manual
will be the Airbus Industrie Flight Crew Operating Manual
(FCOM) or the Buyer's flight crew training manual at the
Buyer's option. The Buyer's standard operating procedures
will be incorporated into the Seller's Flight Crew
Transition course, provided that the Buyer provides the
Seller such procedures at least one (1) month prior to
the start of the first Flight Crew Transition course. The
Buyer will receive no compensation from the Seller should
the Buyer elect to perform some Flight Crew Transition
courses partially or totally on dry lease.
16.3.1.2 Flight Crew Initial Operating Experience
To assist the Buyer with ETOPS/non-ETOPS Initial
Operating Experience during the Buyer's introduction of
the Aircraft into revenue service, the Seller will
provide the Buyer, or cause to be provided to the Buyer,
instructor-pilots free of charge *** to be used up to
nine (9) months after entry into service of the first
Aircraft. This assistance will be provided on the
Aircraft.
***
16.3.1.3 Flight Instructor Familiarization Course
The Seller will provide a certain number of the Buyer's
Instructor pilots with a Flight Instructor
Familiarization Course.
16.3.2 Maintenance Courses
16.3.2.1 Maintenance Training
The Seller will provide free-of-charge Training courses
for ground personnel for a total of *** trainee-days of
instruction. The range of maintenance courses is listed
in Appendix "B" to this Clause 16. The Buyer may elect to
use part of this Training allowance to perform some
maintenance training classes at another US carrier on a
space available basis.
The trainee days will be counted as follows:
(i) For instruction at ATC-Miami or at ATC-Toulouse,
the total number of trainee days counted will be
the number of trainees enrolled at the beginning
of a Training course multiplied by the number of
days of instruction.
(ii) For instruction at locations other than the
ATC-Miami or at the ATC-Toulouse, the total
number of trainee days counted will be the
greater of twelve (12) and the number of
trainees enrolled at the beginning of a Training
course multiplied by the number of days of
detachment of the Seller's
instructor(s).
16.3.2.2 Maintenance Initial Operating Experience
[INTENTIONALLY LEFT BLANK]
16.3.3 Flight Attendants/Operations/Performance Courses
The Seller will provide free of charge *** trainee days
of instruction to be used for the training courses listed
in Appendix "C" to this Clause 16. In the event the Buyer
would like the main features of the Specifications to be
covered during the aircraft visit of the Flight
Attendants Familiarization Course, such visit may be
given as of two (2) weeks before delivery of the first
Aircraft.
16.3.4 Familiarization Training
At the Buyer's request the Seller will conduct general
familiarization courses for the Buyer's employees.
Training allowance in Subclause 16.3.2.1 will be used to
cover such courses.
16.3.5 Vendors and Engine Manufacturer Training
The Seller will ensure that the major Vendors and the
Propulsion Systems manufacturer will provide maintenance
and overhaul training on their products at appropriate
times as required by the Buyer.
A list of such major Vendors will be supplied to the
Buyer on request.
16.4 Training Aids and Materials
16.4.1 Training Aids for Trainees at the Seller's Training Centers
For the purposes of this Subclause 16.4.1, it is
understood that training aids and materials provided to
the Buyer's trainees by the Seller (a) are supplied for
the sole and express purpose of providing Training in the
courses described in Subclause 16.3 of this Agreement and
therefore are labeled "For Training Only," (b) are free
of charge, (c) include all cockpit layouts, all printed
course materials, including manuals and supporting
documents. Computer hardware, software and Courseware
(including simulators and simulator data packages) and
all other equipment will be provided to the trainees
solely for use during the Seller's training courses.
Since the Training is for the Buyer's trainees only, the
Buyer undertakes not to divulge the contents of any
training aids or materials to any third party without the
prior agreement of the Seller, save as required pursuant
to any governmental, contractual or legal requirement
imposed upon the Buyer or as permitted by Subclause
16.4.2.
16.4.2 Training Aids for the Buyer's Training Organization
The Seller will provide free of charge *** sets of the
Courseware related to the Aircraft and similar to that
used by the Seller for the Buyer's training organization,
except as provided in this Subclause 16.4.2. Such
Courseware will be for the training of the Buyer's
personnel only and will include a revision service ***.
The Courseware to be provided to the Buyer will be:
(i) supplied with a license in the Buyer's name, and
(ii) compatible with the hardware platform defined by
the Aviation Industry CBT Committee (AICC),
which is fully approved by the Air Transport
Association and International Air Transport
Association.
The Buyer may use the Seller's training aids and
materials *** provided: (i) the Buyer obtains ***.
Any additional sets of Courseware and/or any extension to
the Buyer's right to use such Courseware will be subject
to terms and conditions to be mutually agreed. General
conditions for the supply of the Courseware will apply
and will be detailed during the Training Conference.
16.5 Seller's Support
The Seller will help the Buyer with the development and
introduction of Aircraft training programs at the Buyer's
training center, on the Buyer's request and terms to be
agreed. The Seller will provide free-of-charge technical
assistance in modifying the standard Courseware routers
to the Buyer's in-house training programs.
16.6 INDEMNITY AND INSURANCE
16.6.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 16, THE BUYER AND THE SELLER PROVIDE THE
INDEMNITIES SET FORTH IN SUBCLAUSES 16.6.2 AND 16.6.3.
16.6.2 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER,
THE MANUFACTURER, AND EACH OF THE ASSOCIATED CONTRACTORS
AND THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE
AFFILIATES, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES
FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, LOSS
OF USE, COSTS AND EXPENSES
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS
(EXCEPTING INJURIES TO AND DEATHS OF THE
SELLER'S REPRESENTATIVES PROVIDING THE SERVICES
UNDER THIS CLAUSE) CAUSED BY THE SELLER OR ITS
REPRESENTATIVES, AND
(II) FOR LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING
LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S
SAID REPRESENTATIVES), CAUSED BY THE SELLER OR
ITS REPRESENTATIVES.
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF
SERVICES UNDER THIS CLAUSE 16.
THIS INDEMNITY OF THE BUYER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING
OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE SELLER'S, THE MANUFACTURER'S OR ANY OF
THE ASSOCIATED CONTRACTORS' OR THEIR RESPECTIVE
SUBCONTRACTORS' OR THEIR RESPECTIVE OFFICERS', AGENTS' OR
EMPLOYEES' SAID REPRESENTATIVES.
16.6.3 SELLER'S INDEMNITY
THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER,
ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND
AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND
EXPENSES
(I) FOR INJURIES TO OR DEATHS OF THE SELLER'S SAID
REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS
CLAUSE,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S
SAID REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT
OR GROSS NEGLIGENCE OF THE SELLER'S SAID
REPRESENTATIVES.
WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE PRECEDING
SENTENCE, THE SELLER WILL NOT BE OBLIGATED TO INDEMNIFY
OR HOLD HARMLESS THE BUYER WHERE THE SELLER'S
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE
FROM THE BUYER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
16.6.4 CLAIMS
IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT
AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR
INJURY OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH
HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS
SUBCLAUSE 16.6, THE FORMER (INDEMNITEE) WILL PROMPTLY
GIVE NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE
INDEMNITOR WILL HAVE THE RIGHT TO INVESTIGATE, AND THE
RIGHT IN ITS SOLE DISCRETION TO ASSUME AND CONDUCT THE
DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE,
SUCH DEFENSE, SETTLEMENT OR COMPROMISE INVOLVES THE
POTENTIAL IMPOSITION OF CRIMINAL LIABILITY ON THE
INDEMNITEE OR A CONFLICT OF INTEREST BETWEEN THE
INDEMNITOR AND THE INDEMNITEE, THE INDEMNITOR WILL NOT BE
ENTITLED TO ASSUME AND CONDUCT THE DEFENSE OF ANY SUCH
CLAIM, ACTION, PROCEEDING OR LAWSUIT. THE INDEMNITEES
WILL BE ENTITLED, AT THEIR OWN EXPENSE, ACTING THROUGH
ONE (1) COUNSEL, TO PARTICIPATE IN ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT THE DEFENSE OF WHICH HAS BEEN
ASSUMED BY THE INDEMNITOR PURSUANT TO THE PRECEDING
PROVISIONS, PROVIDED, THAT SUCH PARTICIPATION DOES NOT,
IN THE REASONABLE OPINION OF INDEPENDENT COUNSEL OF THE
INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DEFENSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT
OR COMPROMISE WILL BE ENTERED INTO WITHOUT THE PRIOR
WRITTEN CONSENT OF THE INDEMNITEE, WHICH CONSENT WILL NOT
BE UNREASONABLY WITHHELD OR DELAYED. EACH INDEMNITEE WILL
COOPERATE WITH THE INDEMNITOR IN THE INVESTIGATION AND
CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION, PROCEEDING
OR LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND
CONDUCT THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE
INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH THE
DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE
AND WILL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY
JUDGMENTS, SETTLEMENTS, COSTS OR EXPENSES INCURRED IN
CONDUCTING SAID DEFENSE. FOR THE PURPOSE OF THIS
SUBCLAUSE 16.6, A CLAIM OR LAWSUIT AGAINST THE
MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL
BE DEEMED TO BE A CLAIM OR LAWSUIT AGAINST THE SELLER.
16.6.5 INSURANCE
FOR THE PERIOD OF PERFORMANCE DESCRIBED IN THIS CLAUSE,
THE BUYER WILL
(I) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSE OR
SUBROGATION AGAINST THE SELLER, THE
MANUFACTURER, AND EACH OF THE ASSOCIATED
CONTRACTORS AND THEIR RESPECTIVE SUBCONTRACTORS
AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES AND SUBCONTRACTORS IN RESPECT
OF ALL RISKS HULL INSURANCE POLICY, AND
(II) EFFECT INSURANCE TO COVER THIRD-PARTY LIABILITY
RISKS ARISING DURING SAID PERFORMANCE IN AN
AMOUNT SATISFACTORY TO THE SELLER, NAMING THE
SELLER AND ITS DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES AS ADDITIONAL INSUREDS.
SUCH INSURANCE WILL CONTAIN A CROSS-LIABILITY CLAUSE AND
WILL ALSO CONTAIN A THIRTY (30)-DAY NOTICE-OF-CANCELLATION
PROVISION. UPON REQUEST, THE BUYER WILL DELIVER TO THE
SELLER A CERTIFICATE OF INSURANCE EVIDENCING THE
COVERAGE REQUIRED BY THIS CLAUSE.
CLAUSE 16 - APPENDIX "A"
RECOMMENDED PILOT EXPERIENCE
IN RELATION TO TRANSITION TRAINING
1. CAPTAINS
The Seller recommends that captains have a minimum of 1,000 hours'
experience in command of jet transport category aircraft prior to
transition training provided under Clause 16 of this Agreement.
2. SENIOR CO-PILOTS
Senior co-pilots upgrading to captain and who do not have the
recommended minimum described above in Paragraph 1 will be
considered for transition training provided under Clause 16 of
this Agreement on a case-by-case.
3. CO-PILOTS
The Seller recommends that copilots have a minimum of 500 hours'
experience operating transport aircraft, of which at least 300
hours' should be with jet transport aircraft. This recommended
minimum includes formal basic training.
4. ALL PILOTS
The Seller recognizes that some pilots have no experience with
FMS, AFCS, glass cockpits or two-person (as compared to
three-person) crews, features covered in the Seller's
"Introductory Course." Therefore, the Seller recommends that those
pilots take its "Introductory Course," before taking transition
training provided under Clause 16 of this Agreement. For pilots
who do not have jet transport experience, the Seller recommends
its "Jet Familiarization Course."
5. CROSS-CREW QUALIFICATION TRAINING ("CCQ")
In order to be entitled to take a CCQ course, all pilots will be
required to have a minimum of one hundred fifty (150) flight hours
on A319, A320 or A321 aircraft.
CLAUSE 00 - XXXXXXXX "X"
LIST OF STANDARD A330 MAINTENANCE COURSES
A330 Training
GM01 General Familiarization Course
GM02 Ramp Servicing Course
GM35 Line Mechanics Course
GM45 Line & Base Mechanics\Electrics Course
GM52 Line & Base Avionics\Electrics Course
GM42 Line & Base Mechanics\Avionics\Electrics Course
GM70 Engine Run Up Course
GM71 Engine Run Up & Taxing Course
GM09 Aircraft Rigging Course
GM10 Cabin Interior & Emergency Equipment Course
GM12 Mechanics\Electrics On Job Training Course
GM14 Avionics\Electrics On Job Training Course
GM22 Mechanics\Avionics\Electrics On Job Training Course
GM13 Maintenance Initial Operating Experience
GM18A1 ETOPS Maintenance Course
GM18A2 Accelerated ETOPS Maintenance Course
GM19 CAT II\ CAT III Course
XM15 Basic Digital
GM04 Cargo Loading & Handling Course
GM26 Field Trip
GM27 Simulator Sessions
GM28 Simulator plus Field Trip
XM29 Airbus Crew Resource Management Course
(For Maintenance Personnel)
Structure Courses
Shop Technicians
GSA1 Structure Maintenance for Technicians
XSA2 Basic Composite Repair for Technicians
XSA3 Advanced Composite Repair For Technicians
Inspectors
XSB1 NDT Inspection General
XSB2 Composite Structures NDT Inspections
Engineers
XSC1 Structure Repair for Engineers - Metallic Structures
XSC2 Materials and Processes for Engineers
CLAUSE 00 - XXXXXXXX "X"
LIST OF STANDARD A330 MAINTENANCE COURSES
Shortened Courses A319/A320/A321 ->A330
GM35S Line Mechanics Shortened Course
GM45S Line & Base Mechanics\Electrics Shortened Course
GM52S Line & Base Avionics\Electrics Shortened Course
GM42S Line & Base Mechanics\Avionics\Electrics Shortened Course
GM70S Engine Run Up Shortened Course
GM71S Engine Run Up & Taxing Shortened Course
CLAUSE 00 - XXXXXXXX "X"
LIST OF STANDARD A340 MAINTENANCE COURSES
A340 Training Maintenance Courses
FM01 General Familiarization Course
FM02 Ramp Servicing Course
FM35 Line Mechanics Course
FM45 Line & Base Mechanics\Electrics Course
FM52 Line & Base Avionics\Electrics Course
FM42 Line & Base Mechanics\Avionics\Electrics Course
FM70 Engine Run Up Course
FM71 Engine Run Up & Taxing Course
FM09 Aircraft Rigging Course
FM10 Cabin Interior & Emergency Equipment Course
FM12 Mechanics\Electrics On Job Training Course
FM14 Avionics\Electrics On Job Training Course
FM22 Mechanics\Avionics\Electrics On Job Training Course
FM13 Maintenance Initial Operating Experience
FM19 CAT II\ CAT III Course
XM15 Basic Digital
FM04 Cargo Loading & Handling Course
FM26 Field Trip
FM27 Simulator Sessions
FM28 Simulator plus Field Trip
XM29 Airbus Crew Resource Management Course
(For Maintenance Personnel)
Structure Courses
Shop Technicians
FSA1 Structure Maintenance for Technicians
XSA2 Basic Composite Repair for Technicians
XSA3 Advanced Composite Repair For Technicians
Inspectors
XSB1 NDT Inspection General
XSB2 Composite Structures NDT Inspections
Engineers
XSC1 Structure Repair for Engineers - Metallic Structures
XSC2 Materials and Processes for Engineers
CLAUSE 00 - XXXXXXXX "X"
LIST OF STANDARD A340 MAINTENANCE COURSES
Shortened Courses A319/A320/A321 ->A340
FM35S Line Mechanics Shortened Course
FM45S Line & Base Mechanics\Electrics Shortened Course
FM52S Line & Base Avionics\Electrics Shortened Course
FM42S Line & Base Mechanics\Avionics\Electrics Shortened Course
FM70S Engine Run Up Shortened Course
FM71S Engine Run Up & Taxing Shortened Course
CLAUSE 16 - APPENDIX "C"
LIST OF A330 OPERATIONS/PERFORMANCE COURSES
A330 Training
GG01 Management Survey Course Airbus documentation & programs (G02A2)
GG02 Performance Engineer Course
*Airbus Programs (G02A1)
*Airbus documentation & programs (G02A2) *Airbus systems &
documentation & programs (G02A3) *Airbus systems &
documentation & programs & theory (G02A4)
GG03 Dispatcher transition Course *Airbus documentation &
performance (G03A1) *Airbus systems & documentation &
performance (G03A2) *ETOPS qualifications (G03A3) *Airbus
documentation,,performance & ETOPS (G03A4)
GG06 Weight & Balance Engineer Course
*Balance Chart Design (G06A1)
*Balance Chart Design & Load Master Transition Course (G06A2)
GG07 Load Master Transition Course
GFC5 Flight Crew Ground Instructor's Course
CLAUSE 16 - APPENDIX "C"
LIST OF A340OPERATIONS/PERFORMANCE COURSES
A340 Training
FG01 Management Survey Course
FG02 Performance Engineer Course
*Airbus Programs (G02A1)
*Airbus documentation & programs (G02A2) *Airbus systems &
documentation & programs (G02A3) *Airbus systems &
documentation & programs & theory (G02A4)
XX00 Xxxxxxxxxx transition Course *Airbus documentation &
performance (G03A1) *Airbus systems & documentation &
performance (G03A2)
FG06 Weight & Balance Engineer Course
*Balance Chart Design (G06A1)
*Balance Chart Design & Load Master Transition Course (G06A2)
FG07 Load Master Transition Course
FFC5 Flight Crew Ground Instructor's Course
17 - VENDORS' PRODUCT SUPPORT
17.1 Vendor Product Support Agreements
17.1.1 The Seller has obtained product support agreements
transferable to the Buyer from Vendors of Seller
Furnished Equipment listed in the Specifications
("Product Support Agreements").
17.1.2 These Product Support Agreements are based on the "World
Airlines and Suppliers Guide" and include Vendor
commitments as contained in the Supplier Product Support
Agreements, which include the following provisions:
17.1.2.1 Technical data and manuals required to operate, maintain,
service and overhaul the Vendor items. Such technical
data and manuals will be prepared in accordance with the
applicable provisions of ATA Specification 100 and 101 in
accordance with Clause 14 of this Agreement, will include
revision service and will be published in the English
language. The Seller recommends that software data,
supplied in the form of an appendix to the Component
Maintenance Manual, be provided in compliance with ATA
Specification 102 up to level 3.
17.1.2.2 Warranties and guarantees including Vendors' standard
warranties. In addition, Vendors of landing gear will
provide service life policies for landing gear
structures.
17.1.2.3 Training to ensure efficient operation, maintenance and
overhaul of the Vendors' items for the Buyer's
instructors, shop and line service personnel.
17.1.2.4 Spares data in compliance with ATA Specification 200 or
2000, initial provisioning recommendations, spares and
logistics service, including routine and emergency
deliveries.
17.1.2.5 Technical service to assist the Buyer with maintenance,
overhaul, repair, operation and inspection of Vendor
items as well as required tooling and spares
provisioning.
17.2 Vendor Compliance
The Seller will monitor Vendor compliance with support
commitments defined in the Product Support Agreements and
will promptly take remedial action.
17.3 Vendor Part Repair Stations
17.3.1 The Manufacturer has developed with the Vendors a program
aimed at building a comprehensive network of repair
stations in North America for those Vendor Parts
originating from outside this territory.
17.3.2 As a result of the above, most Vendor Parts are now
repairable in North America, and corresponding repair
stations are listed in a document, the AOG and Repair
Guide, which is issued and regularly updated by the
Manufacturer.
The Seller undertakes that the Vendor Parts that have to
be forwarded for repair outside North America will be
sent back to the Buyer with proper tagging as required by
the FAA.
17.3.3 The Seller will support the Buyer in cases where the
agreed repair turn time of an approved repair station is
not met by causing free-of-charge loans or exchanges (as
specified in the relevant Supplier Product Support
Agreements manual) to be offered to the Buyer ***.
18 - BUYER FURNISHED EQUIPMENT AND DATA
18.1 Installation and Delivery
18.1.1 Without additional charge, and in accordance with the
Specifications, the Seller will cause the Manufacturer to
provide for the installation of the Buyer Furnished
Equipment.
18.1.2 The Seller will cause the Manufacturer to advise the
Buyer reasonably in advance of the dates by which, in the
planned release of engineering for an Aircraft, the
Manufacturer requires a written detailed description of
the dimensions and weight of Buyer Furnished Equipment
for such Aircraft and information necessary for the
installation and operation thereof, and the Buyer will
furnish such detailed description and information by the
dates so specified. Such dimensions and weights will not
thereafter be revised unless mutually agreed and set
forth in an SCN.
18.1.3 The Seller will also cause the Manufacturer to furnish
reasonably in advance (but in no event less than eight
(8) months prior to the scheduled delivery date) to the
Buyer a schedule of dates by and locations to which Buyer
Furnished Equipment for such Aircraft must be delivered
to the Manufacturer to permit installation in and
delivery of such Aircraft in accordance with the delivery
schedule referred to in Clause 9. The Buyer will furnish
such equipment to the Manufacturer at such locations by
such dates. The Buyer, at its own expense, will also
furnish or cause to be present at the works where such
Buyer Furnished Equipment is to be installed, when
requested by the Manufacturer, field service
representatives to provide the Manufacturer technical
advice regarding the installation and calibration of
Buyer Furnished Equipment.
18.2 Specification and Airworthiness Approvals
The Buyer will ensure that all Buyer Furnished Equipment
will meet the requirements of the Specifications, will
comply with applicable DGAC and FAA regulations and will
be approved by the DGAC and the FAA for installation and
use on an Aircraft at the time of delivery of such
Aircraft. The Seller will bear no expense in connection
with adjusting and calibrating Buyer Furnished Equipment
to the extent necessary to obtain DGAC and FAA approval,
unless such adjusting and calibrating is made necessary
by improper installation by the Seller of the Buyer
Furnished Equipment.
18.3 Delay and Nonperformance
Any delay or failure in complying with the obligation in
the foregoing Subclause 18.2, in providing the
descriptive information and services mentioned in
Subclause 18.1 hereof, in furnishing the Buyer Furnished
Equipment or in obtaining any required approval of such
equipment under the DGAC or FAA regulations *** will be,
to the extent that such delay or failure will in turn,
(i) delay the performance of any act to be performed
by or on behalf of the Seller or the
Manufacturer, or
(ii) cause the Final Contract Price of the Aircraft
to be increased by the amount of the Seller's
reasonable additional costs, if any,
attributable to such delay or failure by the
Buyer, including, without limitation, storage,
taxes, insurance and costs of out-of-sequence
installation,
the responsibility of the Buyer, and any resulting cost
will be borne by the Buyer.
Further, in any such event, the Seller may elect to take
any of the actions set forth below in Subclauses 18.3.2,
18.3.3 or 18.3.4:
18.3.2 The Seller will be entitled to cause the Manufacturer to
select, purchase and install the Buyer Furnished
Equipment involved, in which event the Final Contract
Price of the affected Aircraft will be increased by the
purchase price of such Buyer Furnished Equipment plus
reasonable costs and expenses incurred by the
Manufacturer for handling charges, transportation,
insurance, packaging and, if so required and not already
provided for in the Final Contract Price of such
Aircraft, for adjustment and calibration.
18.3.3 If (i) delivery of the Buyer Furnished Equipment is
delayed by more than thirty (30) days after the date
specified by the Manufacturer for the delivery of such
Buyer Furnished Equipment or (ii) the Buyer Furnished
Equipment required to obtain certification of the
Aircraft in accordance with Subclause 2.3 hereof is not
approved by the DGAC or FAA within thirty (30) days after
the date specified by the Manufacturer for the delivery
of such Buyer Furnished Equipment, then, notwithstanding
the terms of Subclause 2.3, the Seller will be entitled
to deliver the affected Aircraft without installing the
Buyer Furnished Equipment, but otherwise in full
compliance with the terms, conditions and requirements of
this Agreement (including, without limitation, Subclause
2.3) and all performance guarantees. Upon such delivery
the Seller will be relieved of all obligations to install
such Buyer Furnished Equipment.
18.3.4 If (i) the Buyer Furnished Equipment is delayed by more
than thirty (30) days after the date specified by the
Manufacturer for the delivery of such Buyer Furnished
Equipment or (ii) the Buyer Furnished Equipment is not
required for certification of the Aircraft and is not
approved by the DGAC or FAA within thirty (30) days after
the date specified by the Manufacturer for the delivery
of such Buyer Furnished Equipment, then the Seller will
be entitled to deliver the Aircraft with no obligation to
install such Buyer Furnished Equipment. The Buyer may
also elect to have the Aircraft so delivered, whereupon
the Seller will be relieved of all obligations to install
such Buyer Furnished Equipment.
18.4 Tax-Free Zones
The Buyer will cause all Buyer Furnished Equipment to be
delivered at its own expense to the tax-free zone at the
following address, unless the Seller notifies the Buyer
otherwise in writing. Final destinations are specified in
the Buyer Furnished Equipment delivery instructions.
AEROSPATIALE, SOCIETE NATIONALE INDUSTRIELLE
000, Xxxxx xx Xxxxxxx
00000 XXXXXXXX
XXXXXX
The Seller represents and warrants that there are no
taxes, duties, imposts or similar charges of any nature
whatsoever in connection with the delivery of Buyer
Furnished Equipment in the tax-free zone specified above
(or subsequently by the Seller).
18.5 Risk of Loss
Title to and risk of loss of Buyer Furnished Equipment
will at all times remain with the Buyer. When Buyer
Furnished Equipment is in the possession of the Seller,
the Seller will have only such responsibility therefor as
is chargeable by law to a bailee for hire, but will not
be liable for loss of use.
18.6 Seller-Supplied Buyer Furnished Equipment
If the Buyer requests the Seller to cause the
Manufacturer to supply directly certain items that are
considered Buyer Furnished Equipment pursuant to the
Specifications, and if compliance with such request by
the Seller and the Manufacturer in their judgment will
not affect the delivery date of an Aircraft referred to
in Clause 9, then the Seller will order such items
subject to the execution of an SCN reflecting the effect
on price and any other items and conditions of this
Agreement. In such a case, the Seller will be entitled to
the payment of a reasonable handling charge (with respect
to Buyer Furnished Equipment not manufactured by the
Manufacturer) and will bear no liability in respect of
any delay caused and product support commitments assumed
by the Vendor of such Buyer Furnished Equipment, provided
that the Seller has exercised due diligence in procuring
such Buyer Furnished Equipment. The provisions of
Subclauses 18.2 and 18.3 will apply to Buyer Furnished
Equipment covered under this Subclause 18.6 in the event
of any delay in approval or delivery of such Buyer
Furnished Equipment.
18.7 At the time of delivery of each Aircraft, the Seller
will, or will cause the Manufacturer to, ***.
19 - ASSIGNMENT
19.1 Successors and Assigns
Subject to the provisions of this Subclause 19.1, this
Agreement will inure to the benefit of and be binding
upon the successors and assigns of the parties hereto.
This Agreement will not be assigned in whole or in part
by either party without the prior written consent of the
other party, such consent not to be unreasonably
withheld. Notwithstanding anything herein to the
contrary, the Seller may at any time, without the Buyer's
consent, assign any of its rights to receive money, and
any of its duties to effect sale and delivery of any
Aircraft, or any of its responsibilities, duties or
obligations to perform any other obligations hereunder to
the Manufacturer, any of the Associated Contractors, ASC
or any Affiliate of the Seller, the Manufacturer or of
any Associated Contractor provided that (i) such
assignment will not release or diminish the obligations
and liabilities of the Seller hereunder or in respect of
any Aircraft and (ii) such assignment does not increase
the obligations, liabilities, risk, burden, costs or
expenses of the Buyer hereunder.
19.2 Seller's Designations
The Seller may at any time by notice to the Buyer
designate particular facilities or particular personnel
of the Manufacturer, ASC, any of the Associated
Contractors or any Affiliate of the Manufacturer or any
Associated Contractor at which or by whom the services to
be performed under this Agreement will be performed
provided that (i) such designation will not release or
diminish the obligations and liabilities of the Seller
hereunder or in respect of any Aircraft, and (ii) such
designation does not increase the obligations,
liabilities, risk, burden, costs or expenses of the Buyer
hereunder. The Seller may also designate the
Manufacturer, any Associated Contractor or any Affiliate
of the Manufacturer or any Associated Contractor as the
party responsible on behalf of the Seller for providing
to the Buyer all or any of the services described in this
Agreement provided that (i) such designation will not
release or diminish the obligations and liabilities of
the Seller hereunder or in respect of any Aircraft, and
(ii) such designation does not increase the obligations,
liabilities, risk, burden, costs or expenses of the Buyer
hereunder.
19.3 Assignment in Case of Resale or Lease
In the event of the resale or lease of any Aircraft,
pursuant to a financing arrangement, by the Buyer before,
upon, or after delivery thereof to the Buyer, the Buyer's
rights with respect to such Aircraft under this
Agreement, other than the Buyer's rights under Clauses 3,
14, 15, 16 and 17 hereof and Letter Agreements hereto,
other than Letter Agreement No. 1, may be assigned to the
extent necessary to complete the financing on
commercially reasonable terms. The Seller will consent to
such assignment provided that, prior to such assignment,
the Buyer furnishes to the Seller a true copy of such
agreement with such purchaser or lessor, clearly stating
that such purchaser or lessor acknowledges that it is
bound by and will comply with all applicable terms,
conditions and limitations of this Agreement.
19.4 Assignment in Case of ***
The Buyer will have the right to assign the portions
of the Agreement necessary to ***, and the Seller will
consent to such assignment. The Buyer will furnish to the
Seller a true copy of such agreement with such assignee,
clearly stating that such assignee acknowledges that it
is bound by and will comply with all applicable terms,
conditions and limitations of this Agreement.
19.5 ***
***
19.6 ***
20 - DATA RETRIEVAL
On the Seller's reasonable request, the Buyer may provide
the Seller with data customarily compiled by the Buyer
and pertaining to the operation of the Aircraft, to
assist the Seller in making an efficient and coordinated
survey of all reliability, maintenance, operational and
cost data with a view to improving the safety,
availability and operational costs of the Aircraft.
21 - TERMINATION FOR CERTAIN EVENTS
21.1 Seller's Termination Rights
21.1.1 Any of the following will be considered a material breach
of the Buyer's obligations under this Agreement
("Material Breach"):
(1) The Buyer or any other party will commence any
case, proceeding or other action with respect to
the Buyer in any jurisdiction relating to
bankruptcy, insolvency, reorganization or relief
from debtors or seeking a reorganization,
arrangement, winding-up, liquidation,
dissolution or other relief with respect to its
debts and such case, proceeding or action
remains undismissed or unstayed for more than
ninety (90) consecutive days.
(2) An action is commenced seeking the appointment
of a receiver, trustee, custodian or other
similar official for the Buyer for all or
substantially all of its assets and such action
remains undismissed or unstayed for more than
ninety (90) consecutive days, or the Buyer makes
a general assignment for the benefit of its
creditors.
(3) An action is commenced against the Buyer seeking
issuance of a warrant of attachment, execution,
distraint or similar process against all or any
substantial part of its assets and such action
remains undismissed or unstayed for more than
ninety (90) consecutive days.
(4) The Buyer generally admits in writing that it is
unable to pay its debts as they come due.
(5) There is a voluntary liquidation, winding up or
analogous event with respect to the Buyer.
(6) The Buyer is in default on its obligation to
make any Predelivery Payment pursuant to
Subclause 6.2 of this Agreement and ***.
(7) The Buyer defaults on any payment obligation
relating to any Aircraft and such default is not
cured within the applicable grace periods, with
respect to ***.
(8) The Buyer is in default for more than thirty
(30) consecutive days in its obligation to take
delivery of an Aircraft as provided in Subclause
9.3 of this Agreement, subject to the provisions
of Subclause 22.3.4.
21.1.2 In the event of any Material Breach by the Buyer, the
Seller will at its option by written notice to the Buyer
have the right to resort to any remedy provided herein or
under applicable law, including, without limitation, the
right by written notice, effective immediately, to (i)
suspend its performance with respect to undelivered
Aircraft under the Agreement, (ii) reschedule the
delivery dates for Aircraft or for other goods and
services to be provided with respect to undelivered
Aircraft, (iii) terminate this Agreement with respect to
any or all undelivered Aircraft, and to any or all
services, data and other items with respect to
undelivered Aircraft on the effective date of such
termination and (iv) retain, as part of the damages for
breach and not as a penalty, an amount equal to all
Predelivery Payments and all other payments made
theretofore under this Agreement.
21.2 ***
21.2.1 ***
21.2.2 ***
22 - MISCELLANEOUS PROVISIONS
22.1 Notices
All notices and requests required or authorized hereunder
will be given in writing either by personal delivery to a
responsible officer of the party to whom the same is
given or by commercial express courier, facsimile or
other mutually agreeable electronic transmission at the
addresses and numbers set forth below. The date upon
which any such notice or request is so personally
delivered, or if such notice or request is given by
commercial express courier, facsimile or other electronic
transmission, the date upon which sent, will be deemed to
be the effective date of receipt of such notice or
request.
The Seller will be addressed at:
0, xxxx-xxxxx Xxxxxxx Xxxxxxxx
00000 XXXXXXX XXXXXX
Attention: Director - Contracts
Telephone: (00) 0 00 00 00 00
Fax: (00) 0 00 00 00 00
Telex: AVSA 521155F
The Buyer will be addressed at:
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Vice President, Purchasing
Telephone: 000-000-0000
Fax: 000-000-0000
with a copy to the attention of the Buyer's
Office of the General Counsel at the same
address:
Attention: Aircraft Counsel
Fax: 000-000-0000
From time to time, the party receiving the notice or
request may designate another address or another person.
22.2 Waiver
The failure of either party to enforce at any time any of
the provisions of this Agreement, to exercise any right
herein provided or to require at any time performance by
the other party of any of the provisions hereof will in
no way be construed to be a present or future waiver of
such provisions nor in any way to affect the validity of
this Agreement or any part hereof or the right of the
other party thereafter to enforce each and every such
provision. The express waiver by either party of any
provision, condition or requirement of this Agreement
will not constitute a waiver of any future obligation to
comply with such provision, condition or requirement.
22.3 INTERPRETATION AND LAW; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITY; DISPUTE RESOLUTION
22.3.1 INTERPRETATION AND LAW
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE
PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS
CONVENTION ON THE INTERNATIONAL SALE OF GOODS WILL NOT
APPLY TO THIS TRANSACTION.
22.3.2 SUBMISSION TO JURISDICTION
EACH OF THE BUYER AND THE SELLER IRREVOCABLY AGREES THAT
ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS
AGREEMENT MAY BE BROUGHT AND DETERMINED IN THE SUPREME
COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY, IN THE
GENERAL DISTRICT COURTS OF FAIRFAX COUNTY OR ARLINGTON
COUNTY, VIRGINIA, OR IN THE UNITED STATES DISTRICT COURTS
FOR THE SOUTHERN DISTRICT OF NEW YORK, OR THE EASTERN
DISTRICT OF VIRGINIA AND IRREVOCABLY ACCEPTS WITH REGARD
TO ANY SUCH ACTION OR PROCEEDING THE NONEXCLUSIVE
JURISDICTION OF THOSE COURTS.
The Seller hereby irrevocably designates CT Corporation,
New York City offices, to receive for and on its behalf
service of process in any proceeding with respect to any
matter as to which it submits to jurisdiction as set
forth above, it being agreed that service upon CT
Corporation will constitute valid service upon the Seller
in any legal action or proceeding with respect to this
Agreement.
22.3.3 Waiver of Immunity
The Seller irrevocably waives the benefit of Articles 14
and 15 of the French Civil Code, for the purpose of this
Agreement. The Seller hereby irrevocably waives, and
agrees not to assert, the defense of sovereign immunity,
and, to the extent permitted by law, the defense that the
action or proceeding is brought in an inconvenient forum,
that the venue of the action or proceeding is improper,
or that this Agreement may not be enforced in or by such
courts.
22.3.4 Dispute Resolution
***
22.4 Confidentiality
Subject to any legal or governmental requirements of
disclosure, the parties (which for this purpose will
include their employees, agents and advisors) will
maintain the terms and conditions of this Agreement, any
reports or other data furnished, and other documents
furnished by the Seller hereunder strictly confidential.
Without limiting the generality of the foregoing, each
party will use its best efforts to limit the disclosure
of the contents of this Agreement to the extent legally
permissible in any filing required to be made by it with
any governmental agency and will make such applications
as will be necessary to implement the foregoing. With
respect to any public disclosure or filing, the
disclosing party agrees to submit to the other party a
copy of the proposed document to be filed or disclosed
and will give the other party a reasonable period of time
in which to review the said document. The Buyer and the
Seller will consult with each other prior to the making
of any public disclosure or filing, permitted hereunder,
of this Agreement or the terms and conditions thereof.
The provisions of this Subclause 22.4 will survive any
termination of this Agreement.
22.5 Severability
In the event that any provision of this Agreement should
for any reason be held to be without effect, the
remainder of this Agreement will remain in full force and
effect. To the extent permitted by applicable law, each
party hereto hereby waives any provision of law which
renders any provision of this Agreement prohibited or
unenforceable in any respect.
22.6 Alterations to Contract
This Agreement, including its Exhibits, Appendixes and
Letter Agreements, contains the entire agreement between
the parties with respect to the subject matter hereof and
thereof and supersedes any previous understanding,
commitments or representations whatsoever, whether oral
or written (including, without limitation, that certain
AVSA Term Sheet dated July 2, 1998 (Reference AVSA
5211.9), between the Seller and the Buyer and all letter
agreements ancillary thereto). This Agreement will not be
varied except by an instrument in writing of even date
herewith or subsequent hereto executed by both parties or
by their fully authorized representatives.
22.7 Inconsistencies
In the event of any inconsistency between the terms of
this Agreement and the terms contained in either (i) the
Specifications, or (ii) any other Exhibit or Letter
Agreement attached to this Agreement, in each such case
the terms of such Specifications, Exhibit or Letter
Agreement will prevail over the terms of this Agreement.
For the purpose of this Subclause 22.7, the term
Agreement will not include the Specifications or any
other Exhibit or Letter Agreement hereto.
22.8 Language
All correspondence, documents and any other written
matters in connection with this Agreement will be in
English.
22.9 Headings
All headings in this Agreement are for convenience of
reference only and do not constitute a part of this
Agreement.
22.10 Counterparts
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered will be an original, but all such counterparts
will together constitute but one and the same instrument.
IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
AVSA, S.A.R.L.
By: /s/ Xxxxxxx Lascaux
Title: Director Contracts
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Title: Treasurer
CONSENT AND GUARANTY
Airbus Industrie, G.I.E., established under "Ordonnance"
No. 67-821 dated September 23, 1967, of the Republic of France (the
"Guarantor"), hereby acknowledges notice of and consents to all of the
terms of the Airbus A330/A340 Purchase Agreement dated as of November 24,
1998 (as amended, modified, or supplemented from time to time, the
"Agreement"), between AVSA, S.A.R.L. (the "Seller"), and US Airways Group,
Inc. (the "Buyer"), including, without limitation, the assignments of the
Seller's rights under its agreements with the Guarantor, contained in
Clauses 12 and 13, Letter Agreements Nos. 1, 8A, 8B, 8C and 8D, 9, 10, 12
and 13 of such Agreement, and hereby irrevocably and unconditionally
guarantees the due and punctual payment and performance by the Seller of
all of the latter's liabilities and obligations as set forth in the said
Agreement subject to the terms and limitations therein contained. The
Guarantor hereby agrees that its obligations hereunder will be
unconditional and absolute and, without limiting the generality of the
foregoing, will not be released, discharged or otherwise affected by (i)
any modification or amendment of or supplement to said Agreement (other
than release, discharge or waiver of this guarantee hereunder) or (ii) any
assignment of said Agreement or of any rights or obligations thereunder
made in accordance with Clause 19 thereof. The Guarantor further agrees
that it will execute and deliver such other and further instruments as may
be reasonably requested by the Buyer (as such term is defined in the said
Agreement), its successors or assigns to reaffirm its obligations
hereunder. This Consent and Guaranty constitutes a guaranty of performance
and of payment, and the Guarantor agrees that, in case of default by the
Seller, the Buyer will not be required to file suit against the Seller as a
condition to enforcement of this Consent and Guaranty.
The Guarantor irrevocably agrees that any legal action or
proceeding against the Guarantor with respect to this Consent and Guaranty
may be brought and determined in the Supreme Court of the State of New
York, New York County, in the General District Courts of Fairfax County or
Arlington County, Virginia, in the United States District Courts for the
Southern District of New York or the Eastern District of Virginia, or in
the commercial Court ("Tribunal de Commerce") of Toulouse, France, and
irrevocably accepts with regard to any such action or proceeding the
nonexclusive jurisdiction of those courts. The Guarantor irrevocably waives
the benefit of Articles 14 and 15 of the French Civil Code. The Guarantor
hereby irrevocably waives, and agrees not to assert, the defense of
sovereign immunity, and, to the extent permitted by law, the defense that
the action or proceeding is brought in an inconvenient forum, that the
venue of the action or proceeding is improper, or that this Consent and
Guaranty may not be enforced in or by such courts. However, the preceding
sentence will not be construed as a waiver of any requirement of service of
process. The Guarantor hereby irrevocably designates CT Corporation as the
Guarantor's agent to receive service of process in any legal action or
proceeding with respect to this Consent and Guaranty.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE
PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Airbus Industrie, G.I.E.,
By /s/ Xxxx-Xxxx Orlando
----------------------
Title: VP Financial Reporting
and Treasury
By /s/ Xxxxxx Debains
------------------------
Title: VP Finance
EXHIBIT "A-1"
The A330-200 Standard Specification is contained in a separate folder.
EXHIBIT "A-2"
The A330-300 Standard Specification is contained in a separate folder.
EXHIBIT "A-3"
The A340-200 Standard Specification is contained in a separate folder.
EXHIBIT "A-4"
The A340-300 Standard Specification is contained in a separate folder.
EXHIBIT "B"
Change Orders to Standard Specification (SCNs)
[INTENTIONALLY LEFT BLANK]
EXHIBIT "B"
-------------------------------------------------------------------------------------------------------------------------------
REF TITLE BFE A330-300 COMMENTS
-------------------------------------------------------------------------------------------------------------------------------
USA11G001C Interior placards *** As per A319
USA11G002C Additional certificate holders As per A319
USA11G003C Additional exterior markings *** As per A319
USA11G004C Cargo bay placard "NO LIVE ANIMALS" *** For each cargo bay which is not
heated.
11-35-101-01 Cargo placards in both kilos and pounds ***
21-20-110-01 Cabin Recirc filter alternate *** Le bozec or Pall
22-70-100-01 New standard for FMS *** Sextant
22-70-116-01 Automatic erasing of flight path data after landing
00-00-000 st Installation of Cockpit Voice Recorder *** 2 Hour Unit basic 000-0000-000
23-11-134-xx Installation of dual HF BFE *** Allied signal 000-0000-000
23-50-126-15 Installation of Alternate Boomsets *** Telex as per A319 P/N 64300-110
23-12-130-xx Third VHF system installation all three radios VDR *** Sextant ###-##-####A
BASIC Installation of FANS A inc ATSU and DCDUs BFE *** Allied signal for ACARS software.
23-28-116-xx Installation of High Gain or Intermediate Gain
SATCOM system BFE *** Choice of Xxxxxxx or Honeywell
for Avionics
Choice of Top or Side mounted
antennas Allied Signal, Ball,
Marconi
26-23-106-02 Fire extinguisher system for fwd and aft cargo
compartments alt vendor *** HTL - Extended duration to cover
180 mins ETOPS
26-21-107-std Engine Fire extinguishing Bottles alt vendor *** HTL as per A319
26-24-110-01 Alternate cockpit portable fire extinguisher *** TOTAL as per A319
27-92-101-02 Simultaneous sidestick indication (aural/visual)
28-25-11x-01 Relocation of refuel panel to XX xxxx ***
28-25-117-01 Additional refuel/defuel couplings on XX xxxx ***
31-33-114-st Installation of SSFDR *** Allied signal 000-000-000
00-00-000-00 Use of US units rather than metric ***
31-14-103-01 Overhead toggle panel switch reorientation ***
31-52-102-01 OEB Reminder function ***
32-40-134-xx Wheels and Brakes selection *** Choice of Allied Signal, ABS, XX
Xxxxxxxx-Xxxxxxx.
USA32G001C Installation of small bore tyre valves. ***
USA33G001A "Please turn off electronic devices " signs ***
34-10-113-01 ADIRS equipment 4MCU *** Xxxxxx
34-43-113-01 Installation TCAS II BFE *** Allied signal
BASIC TCAS display option *** Sextant p/n C124-04-AA01
BASIC ATC transponders Arinc 900 *** Allied signal
34-55-102-03 VOR/Marker alternate vendor *** Allied signal
34-42-100-01 Radio altitude automatic call outs ***
34-41-151-01 Dual Weather radar system installation with
Predictive windshear system *** Allied signal
34-51-108-06 DME interrogator Arinc 900 *** Allied signal
34-48-128-01 Installation of Enhanced GPWS *** Allied Signal Unit
34-58-310-11 Installation of a Multi Mode Receiver (Replaces
ILS and GPS) *** Sextant
BASIC Reduced Vertical Seperation Minima ***
USA34G001A Standby instruments on LCD display *** Sextant
USA34G002A Weather radar specific Control panel *** Allied signal
USA34G003A Optional warnings for EGPWS ***
USA34G004A Removal of the ADF receivers and antenna ***
35-11-112-01 Flight crew O2 bottle 115 cuft steel ***
35-30-106-04 Alternate PBE installation in cockpit *** Xxxxx
USA38G001A Cold weather package installation ***
25-50-222-01 Heated cargo drainage system ***
USA51G001A Exterior paint process *** Courtaulds desothane
USA51G002A Exterior painting of non standard surfaces,
wings, ths, ths fairing, nacelles. ***
USA51G003A Painted exterior markings ***
USA51G004A Additional corrosion protection using AV8 and
AV30 from Dinotrol ***
USA55G001C Anti erosion protection on fin leading edge. ***
56-10-104-01 Cockpit windows *** PPG
72-00-118-01 Engine selection ***
79-20-100-xx ESSO 2380 engine and APU oil ***
BASIC Boarding music via Audio reproducer BFE ***
BASIC System provisions and installation for pax
audio entertainment BFE ***
USA23G001A System provisions and Installation of IN seat
video all pax inc airshow (Sony VOD) BFE *** All pax ISV, inc In-seat
telephones, and PVIS but not
O/Head monitors
USA24G001A System provisions for Electrically powered F/C
seats and B/C including PC power for SFE ***
USA24G002A Installation of PC power supply at each Y/C
Pax seat SFE ***
USA23G003A Modified wiring seat to seat in first class *** F/C only seat to seat cables under
floor to allow deletion
of seat
track covers.
USA23G002A CIDS Definition *** Same definition as per A319
USA25G00XA Installation of individual pax air outlets ***
Installation of additional C/A seats out of
flexibility concept *** Total of 14 Cabin Attendant seats
all std (No high comfort ones)
Installation of Galley cooling for Five galleys BFE *** Chillers are BFE ducting and
structural installation SFE
Installation of additional Galley BFE *** 6 galleys basic USA request 7
Installation of additional lavatory *** 8 lavs basic in spec USA request 9
Installation of H/C lavatory block U/V ***
Installation of stowages BFE *** Includes VCC all stowages with
cooling up to 1KW, curtain rails
and partitions.
Installation of doghouses BFE ***
Colour specification BFE *** Textiles only are BFE
Installation of NTF in Galley entrance area BFE ***
Installation of NTF in Lavs BFE ***
Installation of Textile covered bulkheads BFE *** Charge for SFE bulkheads only
Installation of textile covered dado panels BFE ***
Installation of XXX xxxxx xxxx xx xxx xxxx xxxx
(X00 L61) ***
Lav interior definition *** Bi folding doors, and
associated options refer
Seat row numbering in OHSC hand rails *** Tedlar covered to CCG
OHSC doors *** Cabin Attendant seats covered with leather
BFE *** CABIN LAYOUT IS BASED ON A###-##-#### REV A
USA52G002A Common cockpit door key ***
USA25G002A Inst. of slide rafts at Type A doors SFE ***
00-00-000 Installation of DA/Air signia EEPMS *** As per A319
00-00-000 Additional OXY masks throughout the cabin *** One additional oxy max per box
throughout the cabin.
All prices are in jan 98 delivery conditions. ***
---------------------------------------------------------------------------------------------------------------------------------
REF TITLE BFE A330-300 COMMENTS A319 A330-200 A340-300
---------------------------------------------------------------------------------------------------------------------------------
21-28-100-01 Installation of aft cargo ventilation system ***
21-28-101-01 Installation of aft cargo ventilation system with
increased cooling ***
21-28-105-01 Installation of Ventilation and Heating system for
FWD cargo compt *** *** *** ***
21-28-106-01 Fwd cargo temp selection on cargo compartment
servicing panel *** requires prior
acceptance of
21-28-105-01 Fwd
Cargo compt vent
and temp control
21-28-107-01 Ground vent installation for bulk and fwd cargo
compartment ***
25-51-107-01 Continuous side guides in fwd cargo compartment ***
25-51-108-01 Continuous side guides in aft compartment ***
25-51-112-01 continuous entrance guides rear of aft cargo
compartment door ***
25-52-100-01 Installation of additional tie-down points in the
forward cargo compartment ***
25-52-117-01 Installation of a pallet stop in the ballmat area
of the fwd cargo compartment ***
25-53-100-01 Alternate LD3 position with four 96 in pallets in
the aft cargo compartment ***
25-53-102-01 LD2 container transport in aft cargo compartment ***
25-54-126-01 LD3 container capability in Bulk cargo compartment ***
notes 1) All prices are catalogue prices and have been
reduced by 15% as per agreement.
2) All prices are in delivery conditions 1/98.
EXHIBIT "C"
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
TITLE
DESCRIPTION
EFFECT ON WEIGHT
Manufacturer's Weight Empty Change:
Operational Weight Empty Change:
Allowable Payload Change:
REMARKS/REFERENCES
Response to RFC
SPECIFICATION CHANGED BY THIS SCN
THIS SCN REQUIRES PRIOR OR CONCURRENT ACCEPTANCE OF THE FOLLOWING SCN(s)
PRICE PER AIRCRAFT
US DOLLARS: Base Year: _____________ Current Year: ___________
AT DELIVERY CONDITIONS: ________________________________________________
This change will be effective on ____________________ Aircraft No. _______
and subsequent provided approval is received by __________________________.
BUYER APPROVAL SELLER APPROVAL
By: By:
Title: (Authorized finance department officer) Date:
By:
Title: (Authorized maintenance or flight operations officer)
Date:
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
After contractual agreement with respect to weight, performance, delivery,
etc., the indicated part of the specification wording will read as follows:
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
SCOPE OF CHANGE (FOR INFORMATION ONLY)
EXHIBIT "D"
SELLER SERVICE LIFE POLICY
1. The Items of primary and auxiliary structure described
hereunder are covered by the Service Life Policy described in
Subclause 12.2 of the Agreement.
2. WINGS - CENTER AND OUTER WING BOX
2.1 Spars, Spar Webs, Chords and Stiffeners
2.2 Ribs Inside the Wing Box
2.3 Upper and Lower Panels of the Wing Box
2.4 Fittings
2.4.1 Attachment fittings for the flap structure
2.4.2 Attachment fittings for the engine pylons and engine mounts
2.4.3 Attachment fittings and support structure for the main
landing gear
2.4.4 Attachment fittings for the center wing box
2.4.5 Wing-to-body structural attachments
2.5 Auxiliary Support Structure
2.5.1 For the slats:
2.5.1.1 Ribs supporting the track rollers on wing box structure
2.5.1.2 Ribs supporting the actuators on wing box structure
2.5.2 For the ailerons:
2.5.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.5.2.2 Actuator fittings/support stays on wing box rear spar or
shroud box
2.5.3 For airbrakes, spoilers, lift dumpers:
2.5.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.5.3.2 Actuator fittings on wing box rear spar or shroud box
2.5.3.3 Trailing edge support structure
2.6 Engine pylons
3. FUSELAGE
3.1 Fuselage Structure
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding/including the
main and nose gear wheel well and center wing box
3.1.3 Skins with doublers, stringers/longitudinal stringers and
frames from the forward pressure bulkheads to the frame
supporting the rear attachment of horizontal stabilizer
3.1.4 Window and windscreen attachment structure but excluding
transparencies
3.1.5 Escape hatches
3.1.6 Passenger and cargo doors internal structure and fixed attachment
3.1.7 Xxxxx excluding scuff plates and upper beams surrounding
passenger and cargo door apertures
3.1.8 Cockpit floor structure and passenger cabin floor beams
excluding floor panels and seat rails
3.1.9 Keel beam structure
3.2 Fittings
3.2.1 Landing gear attachment fittings
3.2.2 Support structure and attachment fittings for the vertical
and horizontal stabilizers
4. STABILIZERS
4.1 Horizontal Stabilizer Main Structural Box
4.1.1 Spars, chords, webs and stiffeners
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
4.1.4 Attachment fittings to fuselage and trim screw actuator
4.1.5 Elevator support structure
4.1.5.1 Hinge bracket
4.1.5.2 Servocontrol attachment brackets
4.2 Vertical Stabilizer Main Structural Box
4.2.1 Spars, chords, webs and stiffeners
4.2.2 Ribs
4.2.3 Skins and stringers
4.2.4 Attachment fittings to fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5. Bearing and roller assemblies, bearing surfaces, bushings,
bolts, rivets, access and inspection doors, including manhole
doors, latching mechanisms, all system components, commercial
interior parts, insulation and related installation and
connecting devices are excluded from this Seller Service Life
Policy.
EXHIBIT "E"
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of that certain Airbus A330/A340 Purchase
Agreement (the "Purchase Agreement") dated as of , 19___ between AVSA,
S.A.R.L. ("AVSA") and US Airways Group, Inc. (the "Buyer"), the acceptance
inspection relating to the AIRBUS [A330] [A340] aircraft (the "Aircraft"),
manufacturer's serial no. , FAA Registration No.:__________, with ____ (__)
series propulsion systems installed thereon, serial nos. (position #1),
(position #2)[, (position #3), and (position #4)] has taken place at
[Toulouse, --------- --------- ----------- France,] on the ______ day of
--------, -----.
In view of said inspection having been carried out with satisfactory
results, the Buyer hereby accepts delivery of the Aircraft as being in
conformity with the provisions of the Purchase Agreement.
This acceptance will not impair the rights of the Buyer that derive from
the warranties and patent indemnities relating to the Aircraft set forth in
the Purchase Agreement.
The Buyer specifically recognizes that it has waived any right it may have
at law or otherwise to revoke this acceptance of the Aircraft.
RECEIPT AND ACCEPTANCE OF THE
ABOVE-DESCRIBED AIRCRAFT
ACKNOWLEDGED
US Airways Group, Inc.
By:___________________________
Title: _________________________
EXHIBIT "F"
TECHNICAL PUBLICATIONS
GENERAL
This Exhibit F lists the form, type, quantity and delivery
dates for the Technical Publications to be provided to the
Buyer pursuant to Clause 14 of the Agreement.
The Technical Publications are published in accordance with
ATA Specification 100 revision 23, with the exception of
certain Component Maintenance Manuals, which may be written
to an ATA Specification 100 revision other than revision 23.
The designation "C" after the title of a Technical
Publication indicates that such Technical Publication may be
customized.
EXHIBIT "F"
1. ENGINEERING DOCUMENTS
1.1 Installation and Assembly Drawings (IAD)--C
The IAD will be delivered according to the Buyer's standard
for the major Assembly and Installation drawings, including
detail drawings.
1.2 Parts Usage Data (PU)
The PU provides the next higher assembly and associated
effectivity for a part.
1.3 Schedules Lists (S)
The S lists the detail parts called up on corresponding
drawings, enabling to go from the assembly down to the detail
part.
1.4 Drawing Number Index (DNI)--C
The DNI lists applicable drawings of the Aircraft delivered
under the Agreement.
1.5 Electrical Load Analysis (ELA)
The ELA details the electrical load on each busbar and is
delivered once only with first of each aircraft type.
1.6 Process and Material Specification (PMS)
The PMS contains data related to manufacturing processes,
material identification and treatments used in the
construction and assembly of the Aircraft.
1.7 Standards Manual (SM)
The SM contains data about Seller approved standards and
includes cross reference lists. The SM will include US
standards/equivalents for all hardware clamps, O-rings,
bearings, fasteners, sealants, adhesive and compounds, raw
materials, processes and procedures.
2. MAINTENANCE AND ASSOCIATED MANUALS
2.1 APU Build-up Manual (ABM)
The ABM follows the format adopted for the Power Plant
Build-up Manual.
2.2 Aircraft Maintenance Manual (AMM)--C
The component location section of the AMM will show those
components detailed in the AMM maintenance procedures. The
trouble shooting part is covered in Subparagraph 2.21 below.
*Aircraft Maintenance Manual Chapter 05 Time Limits (Service
Life Limits) and Maintenance Checks are only delivered in
hard copies.
2.3 Aircraft Schematics Manual (ASM)--C
The ASM is part of the Wiring Manual. Supplied as a separate
manual for schematics.
2.4 Aircraft Wiring Manual (AWM)--C
The AWM is part of the Wiring Manual. Supplied as a separate
manual for wirings.
2.5 Aircraft Wiring Lists (AWL)--C
The AWL is part of the Wiring Manual. Supplied as a separate
document for lists. The AWL includes wire terminations,
connector, terminal, strip locations, wire routings, and
clamping diagrams.
2.6 Component Location Manual (CLM)
The CLM identifies and illustrates the location of all Line
Replacement Units.
2.7 Consumable Material List (CML)
The CML details the characteristics and gives procurement
sources of consumable materials such as grease, oil, etc.
2.8 Duct Repair Manual (DRM)
The DRM contains all the data necessary to locate, identify,
repair and/or replace sub-assemblies of metallic ducts. It
also includes details of tests necessary after repair.
2.9 Fuel Pipe Repair Manual (FPRM)
The FPRM provides workshop repair procedures and data for
specific fuel pipes, after removal from any aircraft of the
Manufacturer of the type of the Aircraft.
2.10 Illustrated Parts Catalog (IPC)--C
The IPC identifies and illustrates all line replaceable parts
and units of the aircraft, excluding the power plant parts.
2.11 Illustrated Parts Catalog (power plant) (PPIPC)--C
The PPIPC covers line replaceable parts and units of the
power plant, provided by the Propulsion Systems manufacturer.
2.12 Illustrated Tool and Equipment Manual (TEM)
The TEM provides information on Ground Equipment and Tools
listed in the Seller's Aircraft Maintenance Manual.
2.13 Maintenance Facility Planning (MFP)
The MFP provides information that will assist airline
personnel concerned with long term planning of ramp or
terminal operations, Aircraft maintenance on the ramp and in
the hangar, overhaul and testing of structure and system
components.
2.14 Maintenance Planning Document (MPD)
The MPD provides maintenance data necessary to plan and
conduct Aircraft maintenance checks and inspections.
2.15 Power Plant Build-up Manual (PPBM)
The PPBM provides instructions for the installation of a
quick engine change kit on a bare engine.
2.16 Support Equipment Summary (SES)
The SES lists support equipment recommended by the Seller,
the Propulsion Systems manufacturer and Vendors.
2.17 Time Limits and Maintenance Checks/Service Limits and
Maintenance Checks (TLMC\SLMC)
The TLMC\SLMC document provides the Manufacturer's
recommended scheduled time limits for inspections and
maintenance checks.
2.18 Tool\Equipment Drawings (XXX)
TED's will be supplied in the form of aperture cards for the
Seller and, when available, Vendor maintenance tools.
2.19 Tool and Equipment Drawing Index (TEI)
The TEI is an alpha-numeric listing of the TED's.
2.20 Trouble Shooting Manual (TSM)--C
The TSM complements the CFDS and provides trouble-shooting
data in the following three levels:
Level 1 - Aimed at line use. Fault isolation guidance for
systems or parts of systems monitored mainly by
CFDS. Also guidance for systems not monitored by
CFDS.
Level 2 - Aimed at hangar use. Fault isolation guidance
for non-CFDS monitored systems in the form of
functional block diagrams, charts and tables.
Level 3 - Aimed at engineering use. List of CFDS messages
and decoding of trouble shooting data (decoding
of coded messages provided by the CFDS). Level 3
is supplied on floppy disk.
2.21 Aircraft Documentation Retrieval System (ADRES)
This system allows the retrieval of the Aircraft Maintenance
Manual (AMM) and the Illustrated Parts Catalog (IPC).
2.22 Computer Assisted Aircraft Troubleshooting (CAATS)
CAATS contains extracts from the Aircraft Maintenance Manual
(AMM) and Illustrated Parts Catalog (IPC) and the complete
Trouble Shooting Manual (TSM) and provides an efficient
trouble-shooting aid on CD-ROM.
3. MISCELLANEOUS DOCUMENTATION
3.1 Airplane Characteristics for Airport Planning (AC)
The AC will be in general accordance with Specification NAS
3601.
3.2 Aircraft Recovery Manual (ARM)
The ARM provides the following planning information:
preparing and moving a disabled aircraft that may be
obstructing airport traffic.
3.3 Cargo Loading System Manual (CLS)
The CLS details handling procedures for the Cargo Loading
System.
3.4 Crash Crew Chart (CCC)
The CCC provides information concerning access to the
Aircraft interior, location of safety equipment, hazardous
liquids, etc.
3.5 Guidelines for Customer Originated Changes (GCOC)
The GCOC provides production and presentation rules for the
data covering Buyer originated changes on the Aircraft to be
incorporated by the Seller in the Technical Publications as
per Subclause 14.11 of the Agreement.
3.6 List of Radioactive and Hazardous Elements (LRE)
The LRE provides information on components and materials for
which specific precautions have to be taken.
3.7 List of Applicable Publications (LAP)--C
The LAP will record the Seller's various Airframe Technical
Publications indicating the last valid revision number and
issue date.
3.8 Livestock Transportation Manual (LTM)
The LTM details the facilities, equipment and procedures
necessary for live animal transportation in aircraft of the
Manufacturer of the type of the Aircraft.
3.9 Service Bulletins (SB)--C
The Buyer will receive all Service Bulletins applicable to
the Aircraft.
3.10 Service Information Letters (SIL)
SILs give information of a general nature and also about
minor changes or inspections the Buyer may wish to apply
under the Buyer's authority.
3.11 Technical Publications Combined Index (TPCI)
The TPCI is an electronic index. It is used for easy
identification of the index references and links the
following documents: MOD, SB, SIL, TFU, AOT, OIT, FOT, OEB,
AD and CN.
3.12 Transportability Manual (TM)
The TM gives cargo hold dimensions for currently available
cargo Aircraft, transportation information and requirements
for large Aircraft components. Component dimensions, weights
and shelf life limitations are also given.
3.13 Supplier Product Support Agreements (SPSA)
The SPSA is a collection of product support conditions
negotiated by the Manufacturer with the suppliers of Aircraft
equipment.
3.14 Vendor Information Manual (VIM)
The VIM provides Vendor contact information.
3.15 Vendor Information Manual (GSE) (VIM/GSE)
The VIM/GSE gives contact names and addresses of Ground
Support Equipment (GSE) vendors and their product support
organizations.
4. OPERATIONAL MANUALS
4.1 Check List\Abnormal\Emergency\Quick Reference Handbook
(CL\QRH)--C
The CL is an extract from the FCOM presented as a booklet for
quick in-flight use.
4.2 FAA Approved Flight Manual (FM)--C
The AFM provides Aircraft performance operating limitations
and other flight data required by the relevant airworthiness
authorities for certification. It includes the Configuration
Deviation List (CDL).
4.3 Flight Crew Operating Manual (FCOM)--C
The FCOM provides Aircraft and systems descriptions, normal,
abnormal and emergency procedures as well as operational
performance.
4.4 Master Minimum Equipment List (MMEL)
The MMEL defines the components and the related conditions
under which, when the components are defective, the Aircraft
may be cleared for flight. In addition, the MMEL provides the
necessary information to establish the Buyer's own Minimum
Equipment List (XXX).
4.5 Performance Engineer's Program (PEP)
The PEP consists of a Low Speed Performance data base and a
High Speed Performance data base together with their
respective programs. The Performance Engineering Program may
be used by the Buyer under the license conditions set forth
in Appendix A to this Exhibit F.
The Low Speed Performance programs consist of the Take-off
and Landing Chart computation program (TLC) which permits the
computation of:
- regulatory take-off and landing performance,
- noncertified take-off performance accounting for runway
data and weather, together with the Tabulation and
Interpolation program (TAB), issued with the AFM, which
permits the reading, editing and interpolation of the tables
listed in the AFM.
The High Speed Performance programs are the In Flight
Performance computation program (IFP) which permits
computation of Aircraft performance for each flight phase and
the Aircraft Performance Monitoring program (APM) which
permits analysis of Aircraft cruise performance from data
recorded during stabilized flight periods.
4.6 Performance Program Manual (PPM)
The PPM is the users' guide for the Performance Engineering
Program (PEP).
4.7 Weight and Balance Manual (WBM) and
Weight and Balance Manual Supplements--C
The corresponding supplements:
-Delivery Weighing Report,
-Equipment List,
will be delivered with each Aircraft.
5. OVERHAUL DATA
5.1 Cable Fabrication Manual (CFM)
The CFM contains all the data necessary to locate, identify,
manufacture and test control cables used on the Aircraft. An
appendix contains cable end fitting specification sheets, and
detailed manufacturing instructions.
5.2 Component Documentation Status (CDS)--C
The CDS lists Component Maintenance Manuals in accordance
with Subparagraphs 5.4 and 5.5 below.
5.3 Component Evolution List (CEL)
The CEL is a noncustomized document listing all components on
the Aircraft and also gives the evolution of each component.
The information is provided in order of:
- part number
- FSCM
- ATA reference.
5.4 Component Maintenance Manual Manufacturer (CMMM)
The CMMM contains all the data necessary to locate, identify
and maintain Aircraft components manufactured by the
Manufacturer.
5.5 Component Maintenance Manual Vendor (CMMV)
The Seller will to ensure that each Vendor of repairable
components will deliver to the Buyer a Component Maintenance
Manual Vendor with revision service.
6. STRUCTURAL MANUALS
6.1 Nondestructive Testing Manual (NTM)
The NTM supplies Airframe data necessary to carry out
nondestructive testing.
6.2 Structural Repair Manual (SRM)
The SRM contains descriptive information for identification
and repair of the Airframe primary and secondary structure
and will include substantial structural analysis.
FORM
AC APERTURE CARD. Refers to 35mm film contained on punched aperture
cards.
CD CD-ROM.
D FLOPPY DISK
F MICROFILM. Refers to 16mm roll film in 3M type cartridges.
MP Refers to paper printed one side, unpunched quality will be
suitable for further reproduction or microfilming.
MT MAGNETIC TAPE
P1 PRINTED ONE SIDE. Refers to manuals in paper with print on one
side of the sheets only.
P2 PRINTED BOTH SIDES. Refers to manuals with print on both sides of
the sheets.
SMF SILVER MASTER FILM. Refers to thick diazo film suitable for
further reproduction.
+ Denotes a combined A319/A320/A321/A330/A340 Technical Publication.
* Denotes Technical Publications will be supplied in SGML format if
such format becomes available from the Manufacturer.
TYPE
C CUSTOMIZED. Refers to manuals which are customized to specific MSNs.
E ENVELOPE. Refers to manuals which are not customized.
P PRELIMINARY. Refers to preliminary data or manuals which may
consist of:
-either one time issue not maintained by revision service, or
-preliminary issues maintained by revision service until final
manual or data delivery, or
-supply of best available data under final format with progressive
completion through revision service.
DELIVERY
Manual delivery is expressed either as the number of days prior to delivery
of the first Aircraft or as nil (0), which designates the date of delivery
of the first Aircraft.
It is agreed that the number of days indicated will be rounded up to the
next regular revision release date.
MANUALS AVAILABLE (headlines)
1 - ENGINEERING DOCUMENTS 2 - MAINTENANCE & ASSOCIATED MANUALS 3 -
MISCELLANEOUS PUBLICATIONS 4 - OPERATIONAL MANUALS AND DATA 5 - OVERHAUL
DATA 6 - STRUCTURAL MANUALS
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- ---- --- ------
(detailed)
1. ENGINEERING DOCUMENTS
* Installation and Assembly IAD AC C *** AN1 0
Drawings (including detail
drawings)
Parts Usage (Effectivity) PU F E *** AN 0
* Schedule (Drawing S F E *** AN 0
Nomenclature)
* Drawing Number Index DNI P1 C *** AN 0
+ Process and Material PMS F E *** AN 90
* Specification
+ Standards Manual SM F E *** AN 90
SMF E *** AN 90
* Electrical Load Analysis ELA P2 E *** AN 0
------------
1 Revision service for the manufacture drawings is restricted to cover
the Aircraft configuration at delivery.
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- ---- --- ------
(detailed)
2. MAINTENANCE & ASSOCIATED MANUALS
APU Build-up Manual ABM P2 E *** AN 90
Aircraft Maintenance Manual AMM F C *** 4 90
SMF C *** 4 90
MP C *** 4 90
P2 C *** 4 90
MT C *** 4 90
Aircraft Schematics Manual ASM SMF C *** 4 90
MT C *** 4 90
F C *** 4 90
MP C *** 4 90
P1 C *** 4 90
SGML C *** 4 90
Aircraft Wiring Manual AWM SMF C *** 4 90
F1 C *** 4 90
MP C *** 4 90
MT X *** 0 00
XXXX X *** 4 90
Aircraft Wiring Lists AWL P2 C *** 4 90
F C *** 4 90
SMF X *** 0 00
XXXX X *** 4 90
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- ---- --- ------
(detailed)
+ Consumable Material List CML F E *** AN 90
*
Component Location Manual CLM P C *** 4 90
Duct Repair Manual DRM P2 E *** AN 90
SMF E *** AN 90
Fuel Pipe Repair Manual FPRM P2 E *** AN 90
SMF E *** AN 90
Illustrated Parts Catalog IPC F C *** 4 90
(Airframe) and Additional SMF C *** 4 90
Cross-Reference Table
Illustrated Parts Catalog PIPC MT C *** 4 90
(Power Plant)5 MP C *** 4 90
F C *** 4 90
SMF C *** 4 90
* Illustrated Tool and TEM P2 E *** AN 360
Equipment Manual
* Maintenance Facility Planning MFP P2 E *** AN 360
------------
5 Supplied by the Propulsion Systems Manufacturer
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- ---- --- ------
(detailed)
* Maintenance Planning MPD P2 E *** AN 360
Document
Power Plant Build-up Manual PPBM P2 E *** AN 90
5 F E *** AN 90
SMF E *** AN 90
+ Support Equipment Summary SES P2 E *** AN 360
* F E *** AN 360
SMF E *** AN 360
Time Limits and Maintenance TLMC/ P2 C *** 4 180
Checks/Service Limits and SLMC
Maintenance Checks
+ Tool and Equipment Drawings XXX AC E *** AN 360
* Tool and Equipment Drawing TEI P2 E *** AN 360
Index
Trouble Shooting Manual TSM F C *** 4 90
SMF C *** 4 90
P2 C *** 4 90
----------------
5 Supplied by the Propulsion Systems manufacturer
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- ---- --- ------
(detailed)
* Aircraft Documentation ADRES CD C *** 4 90
Retrieval System
* Computer Assisted Aircraft CAATS CD C *** 4 90
Troubleshooting
3. MISCELLANEOUS PUBLICATIONS
* Airplane Characteristics for AC P2 E *** AN 360
Airport Planning
* Aircraft Recovery Manual ARM P2 E *** AN 90
F E *** AN 90
SMF E *** AN 90
Cargo Loading System CLS P2 E *** AN 180
Manual
Crash Crew Chart CCC P1 E *** AN 180
+ Guidelines for Customer GCOC P2 E *** AN 0
Originated Changes
+ List of Radioactive and LRE P2 E *** AN 90
Hazardous Elements
+ List of Applicable Publications LAP P2 C *** 4 90
Livestock Transportation LTM P2 E *** AN 90
Manual
* Service Bulletins SB P2 C *** XXX 90
SMF C *** N 90
F C *** AN 90
SGML C *** AN 90
* Service Bulletin Index SBI P1 E *** AN 90
* Service Information Letters SIL P2 E *** AN 90
+ Technical Publications TPCI CD C *** AN 90
* Combined Index
Transportability Manual TM P2 E *** AN 90
Supplier Product Support SPSA P2 E *** AN 360
Agreements (SPSA)
* Vendor Information Manual VIM D E *** AN 360
+
+ Vendor Information Manual VIM\ P2 E *** AN 360
* GSE GSE
4. OPERATIONAL MANUALS AND DATA
Check CL/QR P2 C *** AN 90
List/Abnormal/Emergency/ H
Quick Reference Handbook
FAA Approved Flight Manual AFM P1 C *** AN 0
Flight Crew Operating Manual FCOM P2 C *** AN 90
Master Minimum Equipment MMEL P2 E *** AN 90
List
Performance Engineering PEP D E *** AN 90
Program
* Performance Program Manual PPM P2 E *** AN 90
MT E *** AN 90
Weight and Balance Manual WBM P1 C *** AN 0
5. OVERHAUL DATA
+ Cable Fabrication Manual CFM P2 E *** AN 90
*
* Component Documentation CDS P2 C *** AN 180
Status F C *** AN 180
SMF C *** AN 180
+ Component Evolution List6 CEL F E *** AN 180
* Component Maintenance CMMM F E *** AN 180
Manual Airframe SMF E *** AN 180
Manufacturer
* Component Maintenance CMMV P2 E *** AN 180
Manual Vendor
6. STRUCTURAL MANUALS
* Nondestructive Testing NTM P2 E *** 4 180
Manual
* Structural Repair Manual SRM F E *** 4 90
SMF E *** 4 90
SGML E *** 4 90
------------
6 Optional - Delivered as follow-on for CDS.
LICENSE FOR USE
OF THE PERFORMANCE ENGINEERING PROGRAMS (PEP)
1. GRANT
The Seller grants to the Buyer the right to use the Performance
Engineering Programs (PEP) in machine readable form on a single
computer during the term of this license agreement (the "License
Agreement").
Use of the PEP in readable form will be limited to one (1) copy.
However, the Seller may make duplicate copies, provided that they
are either contained in the same computer as the original copy, or
produced for checkpoint and restart purposes or made with the
consent of the Seller for a specific need.
2. MERGING
The PEP may be used and adapted in machine readable form for the
purpose of merging it into other program material of the Buyer,
but, on termination of this License Agreement, the Buyer will
remove the PEP from the other program material with which it has
been merged.
The Buyer agrees to reproduce the copyright and other notices as
they appear on or within the original media on any copies that the
Buyer makes of the PEP.
3. PERSONAL LICENSE
The above described license is personal to the Buyer,
nontransferable and nonexclusive.
4. INSTALLATION
It is the Buyer's responsibility to install the PEP and to perform
any mergings and checks. The Seller will, however, assist the
Buyer's operations engineers in the initial phase following the
delivery of the PEP until such personnel reach the familiarization
level required to make inputs and correlate outputs.
5. PROPRIETARY RIGHTS AND NONDISCLOSURE
5.1 The PEP and the copyright and other proprietary rights of whatever
nature in the PEP are and will remain with the Seller. The PEP and
its contents are designated as confidential.
5.2 The Buyer undertakes not to disclose the PEP, parts thereof or its
contents to any third party without the prior written consent of
the Seller. Insofar as it is necessary to disclose aspects of the
PEP to employees, such disclosure is permitted only for the
purpose for which the PEP is supplied and only to the employee who
needs to know the same.
6. CONDITIONS OF USE
6.1 The Seller does not warrant that the PEP will contain no errors.
However, should the PEP be found to contain any error at delivery,
the Buyer will notify the Seller promptly thereof and the Seller
will take all proper steps to correct the same at its own expense.
6.2 The Buyer will ensure that the PEP is correctly used in
appropriate machines as indicated in the Performance Programs
Manual (PPM) and that staff are properly trained to use the same,
to trace and correct running faults, to restart and recover after
fault and to operate suitable checks for accuracy of input and
output.
6.3 It is understood that the PPM is the user's guide of the PEP and
that the Buyer will undertake to use the PEP in accordance with
the PPM.
6.4 The PEP is supplied under the express condition that the Seller
will have no liability in contract or in tort arising from or in
connection with the Buyer's use of or inability to use the PEP.
7. DURATION
Subject to the Buyer's compliance with the terms of this License
Agreement, the rights under this License Agreement will be granted
to the Buyer for as long as the Buyer operates an Aircraft to
which the PEP refers.
EXHIBIT "G"
AIRFRAME PRICE REVISION FORMULA
l. BASE PRICE
The Base Price of the Airframe is as quoted in Subclause 4.1.1.1,
4.1.1.2, 4.1.1.3 or 4.1.1.4 of the Agreement, as applicable.
2. BASE PERIOD
***
These Base Prices are subject to adjustment for changes in
economic conditions as measured by data obtained from the United
States Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions of Paragraphs 4 and 5 of this
Exhibit "G."
Should the Bureau of Labor Statistics change the base year
indicated below in Paragraph 3, it will be necessary to restate
such values in an appropriate manner. Other changes (such as
benchmark revision), except those related to established errors
from the Bureau of Labor Statistics, will not be taken into
consideration.
3. REFERENCE INDEXES
***
Material Index: "Industrial Commodities Index" (hereinafter
referred to as "ICI-Index"), published monthly by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: "Producer prices
and price indexes for commodity groupings and individual items").
(Base year 1982 = 100.)
4 - REVISION FORMULA
***
In determining the Revised Base Price at delivery of the Aircraft,
each quotient will be calculated to the nearest ten thousandth (4
decimals). If the next succeeding place is five (5) or more, the
preceding decimal place will be raised to the next higher figure.
The final factor will be rounded to the nearest ten thousandth (4
decimals).
After final computation, Pn will be rounded to the next whole
number (0.5 or more rounded to l).
5. GENERAL PROVISIONS
5.1 Substitution of Indexes
In the event that:
(i) the United States Department of Labor substantially
revises its methodology for calculating any of the
indexes referred to here above, or
(ii) the United States Department of Labor discontinues,
either temporarily or permanently, any of the indexes
referred to here above and publication thereof, or
(iii) the data samples used to calculate any of the indexes
referred to here above are substantially changed,
The Seller and the Buyer will agree on a substitute index.
Such substitute index will reflect as closely as possible the
actual variations in wage rates or in material prices, as the case
may be, used in the calculation of the original index.
As a result of this selection of a substitute index, the Seller
and the Buyer will agree on appropriate adjustments to be made to
the price revision formula; such adjustments may include, but will
not be limited to, allowing to combine the successive utilization
of the original index and of the substitute index, and other
methodologies designed to ensure consistency in the numerators and
denominators of the various quotients.
5.2 Final Index Values
The Revised Base Price at the date of Aircraft delivery will be
final and will not be subject to further adjustments, of any kind,
to the applicable indexes as published at the date of Aircraft
delivery.
EXHIBIT "H-1"
XXXXX & XXXXXXX XXXXX REVISION FORMULA
l. REFERENCE PRICE
The Reference Price of a set of two (2) Xxxxx & Whitney PW4168A
Propulsion Systems is as quoted in Subclause 4.1.2.1 of the
Agreement.
This Reference Price is valid for A330 Aircraft delivered through
*** and is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit "H-1."
2. REFERENCE PERIOD
The above Reference Price has been established in accordance with
the economic conditions prevailing in December 1996, as defined,
according to Xxxxx & Xxxxxxx, by the HEb, MMPb and EPb index
values indicated in Paragraph 4 of this Exhibit "H-1."
3. REFERENCE INDEXES
Labor Index: "Aircraft Engines and Engine Parts," Standard
Industrial Classification 3724 Average hourly earnings
(hereinafter referred to as "HE SIC 3724"), published by the US
Department of Labor, Bureau of Labor Statistics, in "Employment
and Earnings," (Table B-15: Average hours and earnings of
production or nonsupervisory workers on private nonfarm payrolls
by detailed industry) or such other names which may be from time
to time used for the publication title and/or table.
Material Index: "Metals and Metal Products" Code 10 (hereinafter
referred to as "MMP-Index"), published monthly by the US
Department of Labor, Bureau of Labor Statistics, in "PPI Detailed
Report" (Table 6: Producer prices indexes and percent changes for
commodity groupings and individual items, not seasonally adjusted)
(Base year 1982 = 100) or such other names which may be from time
to time used for the publication title and/or table.
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP Index"), published monthly by the
US Department of Labor, Bureau of Labor Statistics, in "PPI
Detailed Report" (Table 6: Producer prices indexes and percent
changes for commodity groupings and individual items, not
seasonally adjusted) (Base year 1982 = 100) or such other names
which may be from time to time used for the publication title
and/or table.
4. REVISION FORMULA
Pn = Pb x [0.60(HEn/HEb) + 0.30(MMPn/MMPb) + 0.10(EPn/EPb)]
Where
Pn = Revised Reference Price of a set of two (2) Propulsion
Systems at delivery of the A330 Aircraft
Pb = Reference Price at economic conditions December 1996
HEn = HE SIC 3724 for the fourth month prior to the month of
delivery of the A330 Aircraft
HEb = HE SIC 3724 for December 1996 (= 18.50)
MMPn = MMP-Index for the fourth month prior to the month of
delivery of the A330 Aircraft
MMPb = MMP-Index for December 1996 (= 129.9)
EPn = EP-Index for the fourth month prior to the month of delivery
of the A330 Aircraft
EPb = EP-Index for December 1996 (= 93.3)
In determining the Revised Reference Price each quotient will be
calculated to the nearest ten thousandth (4 decimals). If the next
succeeding place is five (5) or more the preceding decimal place
will be raised to the next higher figure. The final factor will be
rounded to the nearest ten thousandth (4 decimals).
After final computation, Pn will be rounded to the next whole
number (0.5 or more rounded to 1).
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the A330 Aircraft will
be the final price and will not be subject to further adjustments
in the indexes.
5.2 The Revised Reference Price at delivery of the A330 Aircraft will
in no event be less than the Reference Price defined in Paragraph
1 of this Exhibit "H-1."
5.3 If no final index value is available for any of the applicable
months, the published preliminary figures will be the basis on
which the Revised Reference Price will be computed.
5.4 If the US Department of Labor substantially revises the
methodology of calculation of the indexes referred to in this
Exhibit "H-1" or discontinues any of these indexes, the Seller
will, in agreement with Xxxxx & Whitney, apply a substitute for
the revised or discontinued index, such substitute index to lead
in application to the same adjustment result, insofar as possible,
as would have been achieved by continuing the use of the original
index as it may have fluctuated had it not been revised or
discontinued.
Appropriate revision of the formula will be made to accomplish
this result.
5.5 Should the above escalation provisions become null and void by
action of the US Government, the Reference Price will be adjusted
to reflect increases in the cost of labor, material and fuel which
have occurred from the period represented by the applicable
Reference Price Indexes to the fourth month prior to the scheduled
delivery of the A330 Aircraft.
EXHIBIT "H-2"
CFM INTERNATIONAL PRICE REVISION FORMULA
l. REFERENCE PRICE
The Reference Price of a set of four (4) CFM INTERNATIONAL CFM
56-5C4 Propulsion Systems, including four (4) nacelles and four
(4) thrust reversers, is as quoted in Subclause 4.1.2.2 of the
Agreement.
This Reference Price is valid for A340 Aircraft delivered no later
than ***, and is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit "H-2."
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
The above Reference Price has been established in accordance with
the economic conditions prevailing in July 1996 (January 1997
theoretical delivery conditions), as defined, according to CFM
International, by the Reference Composite Price Index of 145.02.
3. REFERENCE INDEXES
Labor Index: "Aircraft Engines and Engine Parts," Standard
Industrial Classification 3724--Average hourly earnings
(hereinafter referred to as "HE SIC 3724"), published by the US
Department of Labor, Bureau of Labor Statistics, in "Employment
and Earnings," (Table B-15: Average hours and earnings of
production or nonsupervisory workers on private nonfarm payrolls
by detailed industry) or such other names which may be from time
to time used for the publication title and/or table.
Material Index (I): "Industrial Commodities" (hereinafter referred
to as "IC-Index"), published monthly by the US Department of
Labor, Bureau of Labor Statistics, in "PPI Detailed Report" (Table
6: Producer prices indexes and percent changes for commodity
groupings and individual items, not seasonally adjusted) (Base
year 1982 = 100) or such other names which may be from time to
time used for the publication title and/or table.
Material Index (II): "Metals and Metal Products" Code l0
(hereinafter referred to as "MMP-Index"), published monthly by the
US Department of Labor, Bureau of Labor Statistics, in "PPI
Detailed Report" (Table 6: Producer prices indexes and percent
changes for commodity groupings and individual items, not
seasonally adjusted) (Base year 1982 = 100) or such other names
which may be from time to time used for the publication title
and/or table.
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP-Index"), published monthly by the
US Department of Labor, Bureau of Labor Statistics, in "PPI
Detailed Report" (Table 6: Producer prices indexes and percent
changes for commodity groupings and individual items, not
seasonally adjusted) (Base year 1982 = 100) or such other names
which may be from time to time used for the publication title
and/or table.
4. REVISION FORMULA
Pn = (Pb + F) x CPIn/145.03
Where
Pn = Revised Reference Price of a set of four (4)
Propulsion Systems at delivery of the A340 Aircraft.
Pb = Reference Price as defined in Paragraph 1 of this Exhibit
"H-2."
F = (0.0011 x N x Pb) Where N = The calendar year of
delivery of the A340 Aircraft minus 1987.
CPIn = Composite Price Index for the sixth month prior to
the month of delivery of the A340 Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.55 (HEn x 100)/(11.16) + 0.10 ICn + 0.25 MMPn
+ 0.10 EPn
Where
HEn = HE SIC 3724 for the sixth month prior to the month of
delivery of the A340 Aircraft; the quotient HEn/11.16
is rounded to the nearest third decimal place. The
product by 0.55 is rounded to the nearest second
decimal place.
ICn = IC-Index for the sixth month prior to the month of
delivery of the A340 Aircraft.
MMPn = MMP-Index for the sixth month prior to the month of
delivery of the A340 Aircraft. The product by 0.25 is
rounded to the nearest second decimal place.
EPn = EP-Index for the sixth month prior to the month of
delivery of the A340 Aircraft.
The Composite Price Index will be determined to the second decimal
place. If the next succeeding decimal place is five (5) or more,
the preceding decimal figure will be raised to the next higher
figure.
The final factor will be rounded to the nearest thousandth (3
decimals).
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the A340 Aircraft will
be the final price and will not be subject to further adjustments
in the indexes.
5.2 If no final index value is available for any of the applicable
months, the published preliminary figures will be the basis on
which the Revised Reference Price will be computed.
5.3 If the US Department of Labor substantially revises the
methodology of calculation of the indexes referred to in this
Exhibit "H-2" or discontinues any of these indexes, the Seller
will, in agreement with CFM International, apply a substitute for
the revised or discontinued index, such substitute index to lead
in application to the same adjustment result, insofar as possible,
as would have been achieved by continuing the use of the original
index as it may have fluctuated had it not been revised or
discontinued.
Appropriate revision of the formula will be made to accomplish
this result.
5.4 Should the above escalation provisions become null and void by
action of the US Government, the Reference Price will be adjusted
to reflect increases in the cost of labor, material and fuel which
have occurred from the period represented by the applicable
Reference Price Indexes to the sixth month prior to the scheduled
delivery of the A340 Aircraft.
5.5 The Revised Reference Price at delivery of the A340 Aircraft in no
event will be less than the Reference Price defined in Paragraph 1
of this Exhibit "H-2."
LETTER AGREEMENT NO. 1
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: SPARE PARTS PROCUREMENT
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
1 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
CONTENTS
CLAUSES
1 - GENERAL
2 - INITIAL PROVISIONING
3 - STORES
4 - DELIVERY
5 - PRICE
6 - PAYMENT PROCEDURES AND CONDITIONS
7 - TITLE
8 - PACKAGING
9 - DATA RETRIEVAL
10 - BUY-BACK
11 - WARRANTIES
12 - LEASING
13 - TURN-AROUND-TIME ***
14 - TERMINATION
15 - ASSIGNMENT
1. GENERAL
1.1 Material
This Letter Agreement covers the terms and conditions for
the services offered by the Seller to the Buyer
("Material Support") in respect of Aircraft spare parts
and other equipment itemized below in Subparagraphs
1.1(a) through 1.1(f) ("Material") and is intended by the
parties to be and will constitute an agreement of sale of
all Material furnished to the Buyer by the Seller
pursuant hereto, except as to Material leased to the
Buyer pursuant to Clause 12 of this Letter Agreement.
The Material will comprise:
(a) Seller Parts
(b) Vendor Parts classified as rotable line
replacement units.
(c) Vendor Parts classified as expendable line
maintenance parts.
(d) Ground support equipment (GSE) and
special-to-type tools.
(e) Hardware and standard material.
(f) Consumables and raw material.
It is expressly understood that Seller Parts will not
include parts manufactured pursuant to a Parts
Manufacturing Authority.
1.2 Scope of Material Support
1.2.1 The Material Support to be provided by the Seller under
the conditions hereunder covers the following:
(a) all Material purchased by the Buyer from the
Seller during the Initial Provisioning Period
(defined below in Paragraph 2) (the "Initial
Provisioning") and all items in Subparagraphs
1.1(a) through 1.1(d) for purchases additional
to the Initial Provisioning Period, and
(b) the Seller's leasing of Seller Parts to the
Buyer for the Buyer's use on its Aircraft in air
transport service as set forth in Paragraph 12
of this Letter Agreement.
1.2.2 Propulsion Systems, including associated parts and spare
parts therefore, are not covered under this Letter
Agreement and will be subject to direct negotiations
between the Buyer and the relevant Propulsion Systems
manufacturer(s).
1.2.3 During a period commencing on the date hereof and
continuing as long as at least five (5) aircraft of the
type of the Aircraft are operated by airlines in
commercial air transport service (the "Term"), the Seller
will maintain or cause to be maintained such stock of
Seller Parts as the Seller deems reasonable (upon
consultation with the Buyer) and will furnish Seller
Parts adequate to meet the Buyer's needs for repairs and
replacements on the Aircraft. Such Seller Parts will be
priced, sold and delivered in accordance with Paragraphs
4 and 5 of this Letter Agreement, upon receipt of the
Buyer's orders.
The Seller will use its best efforts to obtain a similar
service from all Vendors of parts that are originally
installed on the Aircraft and not manufactured by the
Seller.
1.3 Purchase Source of Seller Parts
The Buyer agrees to purchase from the Seller's designee
ASC the Seller Parts required for the Buyer's own needs
during the Term, provided that this Paragraph 1.3 will
not in any way prevent the Buyer from resorting to the
stocks of Seller Parts of other airlines operating
aircraft of the type of the Aircraft or from purchasing
items equivalent to Seller Parts from said airlines,
distributors or dealers, on the condition that said
Seller Parts have been designed and manufactured by, or
obtained from, the Seller, and provided also that this
Paragraph 1.3 will not prevent the Buyer from exercising
its rights under Subparagraph 1.4 of this Letter
Agreement.
1.4 Manufacture of Seller Parts *** by the Buyer
1.4.1 The provisions of Subparagraph 1.3 of this Letter
Agreement notwithstanding, the Buyer may manufacture or
have manufactured for its own use or may purchase from
any other source whatsoever Seller Parts in the following
cases:
(a) after expiration of the Term, if at such time
the Seller is out of stock of a required Seller
Part;
(b) at any time, to the extent Seller Parts are
needed to effect AOG repairs on any Aircraft
delivered under the Agreement and are not
available from the Seller within a lead time
shorter than or equal to the time in which the
Buyer can provide said Seller Parts, provided
the Buyer will sell or lease such Seller Parts
only if they are assembled in an Aircraft that
is sold or leased;
(c) in the event that the Seller fails to fulfill
its obligations with respect to any Seller Parts
pursuant to Subparagraph 1.2 above within a
reasonable period after written notice thereof
from the Buyer;
(d) when, with respect to certain Seller Parts, the
Seller has granted, under the Illustrated Parts
Catalog supplied in accordance with this Letter
Agreement, the right of local manufacture of
Seller Parts, and
(e) after written approval by the Seller, ***.
1.4.2 ***
1.4.3 The rights granted to the Buyer in Subparagraph 1.4.1
will not in any way be construed as a license, nor will
they in any way obligate the Buyer to pay any license
fee, royalty or obligation whatsoever, nor will they in
any way be construed to affect the rights of third
parties.
1.4.4 The Seller will provide the Buyer with all technical data
reasonably necessary to manufacture Seller Parts and ***,
in the event the Buyer is entitled to do so pursuant to
Subparagraphs 1.4.1 and 1.4.2 of this Letter Agreement.
The proprietary rights to such technical data will be
subject to the terms of Subclause 14.10.1 of the
Agreement.
1.5 ***
The Seller and the Buyer acknowledge that the Seller has
provided ***, for the period described in Subparagraph
1.5 of Letter Agreement No. 1 to the A319/A320/A321
Agreement. The Seller will extend this period to include
*** after delivery of the first Aircraft.
***
1.6 Language
1.6.1 Words and expressions used in this Letter Agreement will
have the same meanings as they do in the rest of the
Agreement, unless otherwise stated in this Letter
Agreement.
1.6.2 Technical and trade items used but not defined herein or
in the Agreement will be defined as generally accepted in
the aircraft manufacturing industry.
2. INITIAL PROVISIONING
The period up to and expiring on the ninetieth (90th) day
after delivery of the last Aircraft subject to firm order
under the Agreement will hereinafter be referred to as
the Initial Provisioning Period.
2.1 Seller-Supplied Data
The Seller will prepare and supply to the Buyer the
following documents:
2.1.1 Initial Provisioning Data
The Seller will provide the Buyer initial provisioning
data provided for in Chapter 1 of ATA 2000 for the
Aircraft ("Initial Provisioning Data") in a form, format
and within a time period to be mutually agreed upon.
A revision service will be provided free of charge and
will be effected every ninety (90) days or more
frequently if reasonably requested by the Buyer, up to
the end of the Initial Provisioning Period, or until the
configuration of the Buyer's delivered Aircraft is
included.
In any event, the Seller will ensure that Initial
Provisioning Data are released to the Buyer in time to
allow the necessary evaluation time by the Buyer and the
on-time delivery of ordered Material.
2.1.2 Supplementary Data
The Seller will provide the Buyer with Local Manufacture
Tables (X-File), as part of the Illustrated Parts Catalog
(Additional Cross-Reference Tables), which will be a part
of the Initial Provisioning Data Package.
2.1.3 Initial Provisioning Data for Reconfirmable Aircraft
2.1.3.1 All Reconfirmable Aircraft and Additional Aircraft which
are acquired by the Buyer (the "Reconfirmed Aircraft")
pursuant to the terms and conditions of Letter Agreement
No. 2 to the Agreement will be included in the revision
to the provisioning data that is issued after
reconfirmation of a Reconfirmable Aircraft or the Buyer's
exercise of its option to purchase an Additional
Aircraft, if such revision is not scheduled to be issued
within four (4) weeks from the date of reconfirmation or
of the date of exercise of such option. If the date of
reconfirmation or the date of the exercise of the option
does not allow the Seller four (4) weeks' preparation
time, the Aircraft concerned will be included in the next
scheduled revision.
2.1.3.2 The Seller will, from the date of reconfirmation of an
Aircraft until three (3) months after delivery of such
Aircraft, submit to the Buyer details of particular
Vendor components being installed on the Aircraft and
will recommend the quantity to order. A list of such
Vendor components will be supplied at the time of the
provisioning data revision as specified above.
2.1.3.3 The Seller will deliver to the Buyer T-files for
particular Vendor components, as applicable, in time to
allow the Buyer's planning of repair and overhaul tasks.
2.1.3.4 At delivery of each Reconfirmed Aircraft, the data with
respect to Material will at least cover such Aircraft's
technical configuration as known six (6) months before
Aircraft delivery and will be updated to reflect the
final build status of such Aircraft. Such update will be
included in the data revisions issued three (3) months
after delivery of such Aircraft.
2.2 Vendor-Supplied Data
2.2.1 General
Vendors will prepare and issue T-files in the English
language for those Vendor components for which the Buyer
has elected to receive data.
Said data (initial issue and revisions) will be
transmitted to the Buyer through the Seller. The Seller
will review the compliance of such data with relevant ATA
requirements, but will not be responsible for the
substance of such data, other than any errors or
omissions attributable to the Seller's compilation of the
data. The Seller will use its best efforts to ensure that
such data will be adequate to enable the Buyer to
undertake in-house repair and/or overhaul of such
components.
In any event, the Seller will exert its best efforts to
supply Initial Provisioning Data to the Buyer in time to
allow the necessary evaluations by the Buyer and on-time
deliveries.
2.2.2 Initial Provisioning Data
Initial Provisioning Data for Vendor products provided
for in Chapter 1 of ATA 2000 for the Aircraft will be
furnished as mutually agreed upon during a
Preprovisioning Meeting (defined below), with
free-of-charge revision service assured up to the end of
the Initial Provisioning Period, or until it reflects the
configuration of the delivered Aircraft.
2.3 Preprovisioning Meeting
2.3.1 The Seller will organize a meeting at its Material
Support Center in Hamburg, Germany ("MSC"), to formulate
an acceptable schedule and working procedure to
accomplish the Initial Provisioning of Material (the
"Preprovisioning Meeting").
2.3.2 The date and location of the Preprovisioning Meeting will
be mutually agreed upon.
2.4 Initial Provisioning Training
The Seller will furnish, at the Buyer's request and at no
charge, training courses related to the Seller's
provisioning documents, purchase order administration and
handling at MSC.
2.5 Initial Provisioning Conference
The Seller will organize an Initial Provisioning
conference at MSC that will include Vendor participation,
as agreed upon during the Preprovisioning Meeting (the
"Initial Provisioning Conference").
2.6 Initial Provisioning Data Compliance
2.6.1 Initial Provisioning Data generated by the Seller and
supplied to the Buyer will comply with the latest
configuration of the Aircraft to which such data relate,
as known three (3) months before the data are issued.
Said data will enable the Buyer to order Material
conforming to its Aircraft as required for maintenance
and overhaul.
This provision will not cover parts embodying those Buyer
modifications that are unknown to the Seller, and parts
embodying modifications neither agreed to nor designed by
the Seller.
2.6.2 During the Initial Provisioning Period, Material will
conform with the latest configuration standard of the
affected Aircraft and with the Initial Provisioning Data
transmitted by the Seller. Should the Seller default in
this obligation, it will immediately replace such parts
and/or authorize return shipment at no transportation
cost to the Buyer. The Buyer will make reasonable efforts
to minimize such cost, in particular by using its own
airfreight system for transportation *** at no charge to
the Seller, ***. The Seller, in addition, will use its
best efforts to cause Vendors to provide a similar
service for their items.
2.7 Delivery of Initial Provisioning Material
2.7.1 To support the operation of the Aircraft, the Seller will
use its best efforts to deliver Initial Provisioning
Material in Subparagraph 1.1(a) of this Letter Agreement
against the Buyer's orders from the Seller and according
to the following schedule, provided the orders are
received by the Seller in accordance with published lead
time:
Each block of Aircraft referred to in the schedule below
will be defined in the Initial Provisioning Conference.
(a) At least fifty percent (50%) of the ordered
quantity of each Line Replacement or Line
Maintenance item three (3) months before
delivery of the first Aircraft of each block of
Aircraft for which the Buyer has placed Initial
Provisioning orders for Material defined above
in Subparagraph 1.1(a).
(b) At least seventy-five percent (75%) of the
ordered quantity of each Line Replacement or
Line Maintenance item one (1) month (for items
identified as line station items, two (2)
months) before delivery of the first Aircraft of
each block of Aircraft for which the Buyer has
placed Initial Provisioning orders for Material
defined above in Subparagraph 1.1(a).
(c) Fifty percent (50%) of the ordered quantity of
each item except as specified in Subparagraphs
2.7.1 (a) and 2.7.1 (b) above at delivery of the
first Aircraft of each block of Aircraft for
which the Buyer has placed Initial Provisioning
orders for Material defined above in
Subparagraph 1.1(a).
(d) One hundred percent (100%) of the ordered
quantity of each item, including line station
items, three (3) months after delivery of the
first Aircraft of each block of Aircraft for
which the Buyer has placed Initial Provisioning
orders for Material, as defined above in
Subparagraph 1.1(a). If said one hundred percent
(100%) cannot be accomplished, the Seller will
have such items available at its facilities for
immediate supply, in case of an AOG.
2.7.2 In the event that less than eighty-five percent (85%) of
the Buyer's orders of Initial Provisioning Material
defined above in Subparagraph 1.1(a), supporting each
block of Aircraft (the "IP Block"), is delivered by the
Seller to the Buyer in accordance with the
provisions set forth above in Subparagraph 2.7.1(d) for
reasons other than Excusable Delay as defined in Clause
10 of the Agreement, then the Seller will provide the
Buyer with a credit equal to (i) eighty-five percent
(85%) minus the actual percentage of the IP Block
delivered, up to a maximum of ten percent (10%),
multiplied by (ii) the aggregate value of the undelivered
portion of the IP Block ordered by the Buyer from the
Seller in accordance with all published lead times.
Subparagraph 4.4 of this Letter Agreement will apply to
the Seller's undertakings under this Subparagraph 2.7.2.
Such credit will be made available by the Seller to the
Buyer upon mutual agreement of the computation.
2.7.3 The Buyer may, subject to the Seller's agreement, cancel
or modify Initial Provisioning orders placed with the
Seller with no cancellation charge as follows:
(a) "Long Lead-Time Material" (lead time exceeding
twelve (12) months) not later than six (6)
months before scheduled delivery of said
Material,
(b) normal lead time Material not later than three
(3) months before scheduled delivery of said
Material,
(c) Buyer-specific Material and Material in
Subparagraphs 1.1(b) through 1.1(f) no later
than the quoted lead time before scheduled
delivery of said Material.
2.7.4 Should the Buyer cancel or modify any orders for Material
outside the time limits defined above in Subparagraph
2.7.3, the Seller will have no liability for the
cancellation or modification, and the Buyer will
reimburse the Seller for any direct cost incurred in
connection therewith to the extent that such cost has
been properly documented by the Seller to the
satisfaction of the Buyer.
3. STORES
3.1 ASCO Spares Center
The Seller has established and will maintain or cause to
be maintained, as long as at least five (5) aircraft of
the type of the Aircraft are operated by US airlines in
commercial air transport service (the "US Term"), a US
store adjacent to Dulles International Airport,
Washington, DC, known as the ASCO Spares Center
-Washington ("ASCO Spares Center"). The ASCO Spares
Center will be operated twenty-four (24) hours/day, seven
(7) days/week, all year, for the handling of AOG and
critical orders for Seller Parts. ASCO Spares Center will
maintain a stock of Seller Parts, including Leased Parts
listed in Appendix A to this Letter Agreement. In the
event of the recurrence of the nonavailability to the
Buyer of a part from the ASCO Spares Center, the Seller
will take all necessary steps to ensure availability
thereof at the ASCO Spares Center at the Buyer's next
request. In the event that the Buyer is still operating
one or more Aircraft at the end of the Term, the Seller
will use its best efforts to ensure the Buyer's access to
Seller Parts.
3.2 Material Support Center, Germany
The Manufacturer has set up and will maintain or cause to
be maintained during the Term a store of Seller Parts at
MSC. MSC will be operated twenty-four (24) hours/day,
seven (7) days/week, all year.
3.3 Other Points of Shipment
The Seller reserves the right to effect deliveries from
distribution centers other than the ASCO Spares Center or
MSC and from any of the production facilities of the
Associated Contractors.
4. DELIVERY
4.1 General
The Buyer's purchase orders will be administered in
accordance with ATA Specification 2000.
The provisions of this Paragraph 4 do not apply to
Initial Provisioning Data and Material.
4.2 Lead Times
4.2.1 In general, the lead times are (and, unless otherwise
agreed, will at all times be) in accordance with the
definition in the "World Airline and Suppliers Guide"
(1994 edition).
4.2.2 Material will be dispatched within the lead times quoted
in the published Seller's price catalog for Material
described in Subparagraph 1.1(a), and within the Vendor's
or supplier's lead time augmented by the Seller's own
order and delivery processing time (such in-house
processing time not to exceed fifteen (15) days) for
Material described in Subparagraphs 1.1(b) through
1.1(d). The Seller will endeavor to improve its lead
times and neither the Seller, the Manufacturer nor any of
their Affiliates will discriminate against the Buyer in
delivery processing time.
4.2.3 Expedite Service
The Seller operates a twenty-four (24) hour-a-day, seven
(7) day-a-week expedite service to supply the relevant
Seller Parts available in the Seller's stock, workshops
and assembly line, including high-cost long-lead-time
items, to the international airport nearest the location
of such items (the "Expedite Service").
The Expedite Service is operated in accordance with the
"World Airline and Suppliers Guide." Accordingly, the
Seller will notify the Buyer of the action taken to
effect the Expedite Service as follows:
(a) four (4) hours after receipt of an AOG order,
(b) twenty-four (24) hours after receipt of a
critical order (imminent AOG or work stoppage),
(c) seven (7) days after receipt of an expedite
order from the Buyer.
The Seller and its subcontractors will deliver Seller
Parts requested on expedite basis against normal orders
previously placed by the Buyer or upon requests by
telephone or telex by the Buyer's representatives, such
requests to be confirmed by the Buyer's subsequent order
for such Seller Parts within a reasonable time.
4.3 Delivery Status
The Seller agrees to report to the Buyer the status of
supplies against orders on a monthly basis.
4.4 Excusable Delay
Subclause 10.1 of the Agreement will apply to the
Material Support as defined in Paragraph 1 of this Letter
Agreement.
4.5 Shortages, Overshipments, Nonconformance in Orders
4.5.1 Within thirty (30) days after receipt of Material
delivered pursuant to a purchase order, the Buyer will
use all best efforts to advise the Seller of any alleged
shortages or overshipments with respect to such order and
of all nonconformance to specification of parts in such
order inspected by the Buyer.
In the event that the Buyer has not reported such alleged
shortages, overshipments or nonconformance within the
above defined period, the Buyer will be deemed to have
accepted the deliveries unless the Buyer can prove within
a reasonable period of time that it did not receive the
Material.
4.5.2 In the event that the Buyer reports overshipments or
nonconformance to the specifications within the period
defined above in Subparagraph 4.5.1, the Seller will, if
accepted, either replace the Material concerned or credit
the Buyer for Material returned. In such case,
transportation charges will be borne by the Seller.
The Buyer will endeavor to minimize such costs,
particularly by using its own airfreight system on a
space-available basis for transportation at no charge to
the Seller.
4.6 Delivery Performance of Material
The Seller hereby agrees to participate in a Material
delivery performance incentive.
Based upon the Material delivery performance criteria for
response under Expedite Service as set forth in
Subparagraph 4.2.3 and for routine orders in accordance
with the Seller's published lead times, and provided all
above shipments *** (the "Delivery Criteria"), the Seller
commits to an overall delivery performance of eighty-five
percent (85%) on an annual basis. In the event that the
Seller's performance falls below the eighty-five percent
(85%) level, the Seller will provide the Buyer with a
credit equal to (i) eighty-five (85%) minus the actual
percentage of orders delivered on time, up to a maximum
of ten percent (10%), multiplied by (ii) the aggregate
value of the orders delivered late according to the
Delivery Criteria set forth above. Subparagraph 4.4 above
will apply to the Seller's undertakings under this
Subparagraph 4.6.
At the end of each year following delivery of the first
Aircraft, the Seller will compute the above-described
figures in order to determine a credit or debit for the
account of the Buyer.
In the event the Seller records a credit for the account
of the Buyer, the Seller will make available to the Buyer
a credit memorandum in the amount described in this
Subparagraph 4.6 for the purchase of Material from the
Seller.
4.7 Exclusivity of Remedy
The remedies provided to the Buyer under Subparagraphs
2.7.2 and 4.6 above are mutually exclusive and not
cumulative.
4.8 Cessation of Deliveries
The Seller reserves the right to stop or otherwise
suspend deliveries of Material if the Buyer fails to meet
its obligations under Paragraphs 6 and 7 of this Letter
Agreement.
5. PRICE
5.1 Point of Shipment
***
5.2 Validity of Prices
5.2.1 The prices are the Seller's published prices in effect on
the date of receipt of the order (subject to reasonable
quantities and delivery time) and will be expressed in US
dollars. Payment will be made by the Buyer to the Seller
in US dollars as set forth below in Subparagraph 6.1.
5.2.2 Prices of Seller Parts will be in accordance with the
then current Seller's Spare Parts Price List. Prices will
be firm for each calendar year. The Seller, however,
reserves the right to revise the prices of Seller Parts
during the course of the calendar year in the event of
manifest error in estimation or expression of any price.
In the event of a significant revision in manufacturing
costs or a significant revision in the purchase price to
the Manufacturer of Seller Parts (including significant
variation in exchange rate) during any particular
calendar year, the Seller will notify the Buyer of such
revisions, whereupon the Buyer may, within such
quantities of affected Seller Parts still available for
sale at the former prices, order such quantities of said
Seller Parts reasonably required to maintain its
customary stock levels of such Seller Parts for the
remainder of the calendar year in effect at that time
provided the Seller is not thereby required to deplete
the Seller's AOG inventory level unless such Seller Parts
are required by the Buyer on an AOG basis. In the event
the Seller is out of stock of such Seller Parts at the
former prices, the Seller will, upon request by the
Buyer, reasonably substantiate the price revisions
affecting such Seller Parts.
5.2.3 ***
5.2.4 Prices of Material as defined above in Subparagraphs
1.1(b) through 1.1(d) will be the valid list prices of
the Vendor or supplier augmented by the Seller's handling
charge. The percentage of the handling charge will vary
with the Material's value and will be determined item by
item.
5.2.5 The Seller warrants that, should the Buyer purchase from
the Seller one hundred percent (100%) of the recommended
Initial Provisioning of Material defined above in
Subparagraphs 1.1(b) through 1.1(d), the average handling
charge on the total package will not exceed fifteen
percent (15%). This average handling charge will be
increased to eighteen percent (18%) in the event that all
orders have not been placed nine (9) months prior to
delivery of the first Aircraft.
5.2.6 Prices of Material as defined above in Subparagraphs
1.1(e) and 1.1(f) will be the Seller's purchase prices
augmented by a variable percentage of handling charge.
6. PAYMENT PROCEDURES AND CONDITIONS
6.1 Currency
Payment will be made in immediately available funds in US
dollars.
6.2 Time and Means of Payment
Payment will be made by the Buyer to the Seller within
thirty (30) days from the date of invoice. It is also
agreed that the Seller will provide the Buyer with a
credit equal to one percent (1%) of each payment,
provided such payment is received within ten (10) days
from the date of invoice.
6.3 Bank Accounts
The Buyer will make all payments hereunder in full
without setoff or counterclaim, and without deduction of
any kind to the accounts listed below, unless otherwise
directed by the Seller:
(a) For wire transfer, in favor of Airbus Service
Company:
CoreStates Bank N.A.
Account Number 14096-31312
ABA Number 000000000
(b) For direct deposit (lockbox), in favor of Airbus
Service Company:
Airbus Service Company
XX Xxx 0000-0000
Xxxxxxxxxxxx, XX 00000-0000
6.4 No Setoff
All payments due the Seller hereunder will be made in
full without setoff or counterclaim and without deduction
or withholding of any kind. Consequently, the Buyer will
assure that the sums received by the Seller under this
Letter Agreement will be equal to the full amounts
expressed to be due the Seller hereunder.
6.5 If any payment due the Seller is not received in
accordance with the time period provided above in
Subparagraph 6.2, the Seller will have the right to claim
from the Buyer and the Buyer will promptly pay to the
Seller interest on the unpaid amount at a rate equal to
*** to be calculated from (and including) the due date to
(but excluding) the date payment is received by the
Seller. The Seller's claim to such interest will not
prejudice any other rights the Seller may have under this
Letter Agreement.
7. TITLE
Title to any Material purchased under this Letter
Agreement will ***.
8. PACKAGING
All material will be packaged in accordance with ATA 300
specification, Category III for consumable/expendable
Material and Category II for rotables. Category I
containers will be used if requested by the Buyer and the
difference between Category I and Category II packaging
costs will be paid by the Buyer together with payment for
the respective Material.
9. DATA RETRIEVAL
On the Seller's reasonable request, the Buyer may provide
periodically to the Seller, during the Term, a
quantitative list of the parts used for maintenance and
overhaul of the Aircraft as customarily compiled by the
Buyer and pertaining to the operation of the Aircraft to
assist the Seller in making an efficient and coordinated
survey of spare parts data with a view to improving
maintenance and overhaul of the Aircraft. The range and
contents of this list will be established by mutual
agreement between the Seller and the Buyer.
10. BUY-BACK
10.1 Buy-Back of Obsolete Material
The Seller agrees to buy back unused Seller Parts that
may become obsolete for the Buyer's fleet *** to the
Buyer as a result of mandatory modifications required by
the Buyer's or Seller's airworthiness authorities,
subject to the following:
(a) the Seller Parts involved will be those which
the Seller directs the Buyer to scrap or dispose
of and which cannot be reworked or repaired to
satisfy the revised standard;
(b) the Seller will grant the Buyer a credit equal
to the purchase price paid by the Buyer for any
such obsolete parts, such credit being limited
to quantities ordered in the Initial
Provisioning recommendation; and
(c) the Seller will use its reasonable efforts to
obtain for the Buyer the same protection from
Vendors.
10.2 Buy-Back of Surplus Material
10.2.1 The Seller agrees that at any time within twelve (12)
months after the end of the Initial Provisioning Period,
the Buyer will have the right to return to the Seller, at
a credit of one hundred percent (100%) of the original
purchase price paid by the Buyer, unused and undamaged
Material set forth above in Subparagraphs 1.1(a) and
1.1(b) originally purchased from the Seller under the
terms hereof, provided (i) that the selected protection
level for all Material does not exceed ninety-six percent
(96%) with a turnaround time of forty-five (45) days,
(ii) *** and (iii) that the Material is returned with the
Seller's original documentation and any such
documentation (including tags, certificates) required to
identify, substantiate the condition of and enable the
resale of such Material.
10.2.2 The Seller's agreement in writing is necessary before any
Material in excess of the Seller's recommendation may be
considered for buy-back.
10.2.3 It is expressly understood and agreed that the rights
granted to the Buyer under this Subparagraph 10.2 will
not apply to Material that may become obsolete at any
time or for any reason other than as set forth in
Subparagraph 10.1 above.
10.2.4 Further, it is expressly understood and agreed that all
credits referred to above in Subparagraph 10.1(b) will be
provided by the Seller to the Buyer exclusively by means
of credit notes to be entered into the Buyer's account
with the Seller for Material.
10.3 All transportation costs for the return of obsolete and
surplus Material under this Paragraph 10, including any
applicable insurance and customs duties or other related
expenditures, will be borne by the Seller, in the case of
obsolete Material and by the Buyer, in the case of
surplus Material.
11. WARRANTIES
The Seller in its capacity as "Buyer" under its
arrangements with the Manufacturer has negotiated and
obtained the following warranties for Seller Parts from
the Manufacturer, in its capacity as "Seller", with
respect to the Seller Parts, subject to the terms,
conditions, limitations and restrictions all as
hereinafter set out. The Seller hereby guarantees to the
Buyer the performance by the Manufacturer of the
Manufacturer's obligations and assigns to the Buyer, and
the Buyer hereby accepts, all of the rights and
obligations of the Seller in the Seller's capacity as
"Buyer" as aforesaid under the said warranties for Seller
Parts delivered to the Buyer pursuant to this Letter
Agreement and the Seller subrogates the Buyer as to all
such rights and obligations in respect of such Seller
Parts. The Seller hereby warrants to the Buyer that the
Seller has all the requisite authority to make the
foregoing assignment and effect the foregoing subrogation
to and in favor of the Buyer and that the Seller will not
enter into any amendment of the provisions so assigned or
subrogated without the prior written consent of the
Buyer. Capitalized terms utilized in the following
provisions have the meanings assigned thereto in this
Letter Agreement, except that the term "Seller" refers to
the Manufacturer and the term "Buyer" refers to the
Seller. References to clauses and paragraphs in the
following provisions refer to clauses in the Agreement
and/or to paragraphs in this Letter Agreement.
QUOTE
11.1 Seller Parts
Subject to the limitations and conditions as hereinafter
provided, the Seller warrants to the Buyer that all
Seller Parts as defined above in Subparagraph 1.1(a) will
at the time of delivery to the Buyer:
(a) be free from defects in material,
(b) be free from defects in workmanship, including,
without limitation, processes of manufacture,
(c) conform to the applicable specification for such
part,
(d) be free from defects in design (including,
without limitation, selection of materials)
having regard to the state of the art at the
date of such design,
(e) permit complete interchangeability among
Aircraft and parts of like part-numbered parts,
and
(f) be free and clear of all liens and other
encumbrances.
11.2 Warranty Period
The standard warranty period for defects (i) for Seller
Parts defined above in Subparagraphs 1.1(a) is thirty-six
(36) months after delivery of such Seller Parts to the
Buyer (the "Warranty Period(s)").
11.3 Buyer's Remedy and Seller's Obligation
The Buyer's remedy and Seller's obligation and liability
under this Paragraph 11 are limited to, at the Seller's
expense, the repair, replacement or correction of, any
defective Seller Part, ***.
The Seller, at its option, may furnish a credit to the
Buyer for the future purchase of Seller Parts equal to
the price at which the Buyer is then entitled to acquire
a replacement for the defective Seller Part.
The provisions of Subclauses 12.1.5, 12.1.6, 12.1.7 and
12.1.8 of the Agreement will, as applicable, also apply
to this Paragraph 11.
11.4 Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies
The Buyer and the Seller recognize and agree that the
Exclusivity of Warranties and General Limitations of
Liability provisions and the Duplicate Remedies
provisions contained in Clause 12 of the Agreement will
also apply to the foregoing warranties provided for in
this Paragraph 11.
UNQUOTE
In consideration of the assignment and subrogation by the
Seller under this Paragraph 11 in favor of the Buyer in
respect of the Seller's rights against and obligations to
the Manufacturer under the provisions quoted above, the
Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and
limitations therein contained.
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS
OF LIABILITY AND DUPLICATE REMEDIES
THIS PARAGRAPH 11 (INCLUDING ITS SUBPROVISIONS) SETS
FORTH THE EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND
EXCLUSIVE OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE
REMEDIES AVAILABLE TO THE BUYER, WHETHER UNDER THIS
LETTER AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY SELLER PART
DELIVERED UNDER THIS LETTER AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS PARAGRAPH 11 ARE ADEQUATE AND SUFFICIENT
TO PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR
PROBLEM OF ANY KIND IN THE GOODS AND SERVICES SUPPLIED
UNDER THIS LETTER AGREEMENT. THE BUYER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS,
GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER
RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR
STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY
NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY
SELLER PART DELIVERED UNDER THIS LETTER AGREEMENT,
INCLUDING BUT NOT LIMITED TO, UNLESS OTHERWISE PROVIDED
FOR IN THIS PARAGRAPH 11:
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING, OR
USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING
ACTIONS FOR NEGLIGENCE, RECKLESSNESS,
INTENTIONAL TORTS, IMPLIED WARRANTY IN TORT
AND/OR STRICT LIABILITY;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE
UNIFORM COMMERCIAL CODE, OR ANY OTHER STATE OR
FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY
INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE
OR AGENCY;
(6) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE
COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THE
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THE
AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER AGREEMENT WILL NOT
BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE
EVENT THAT ANY PROVISION OF THIS PARAGRAPH 11 SHOULD FOR
ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE,
THE REMAINDER OF THIS PARAGRAPH 11 WILL REMAIN IN FULL
FORCE AND EFFECT.
The remedies provided to the Buyer under this Paragraph
11 as to any defect in respect of the Aircraft or any
part thereof are not cumulative. The Buyer will be
entitled to the one remedy that provides the maximum
benefit to it, as the Buyer may elect, pursuant to the
terms and conditions of this Paragraph 11 for any such
particular defect for which remedies are provided under
this Paragraph 11; provided, however, that, *** the Buyer
will not be entitled to elect a remedy under one part of
this Paragraph 11 that constitutes a duplication of any
remedy elected by it under any other part hereof for the
same defect. The Buyer's rights and remedies herein ***
arising under these *** covered by this Paragraph 11.
12. LEASING
12.1 Applicable Terms
The terms and conditions of this Paragraph 12 will apply
to the Lessor's (as defined below) stock of Seller Parts
listed in Appendix "A" to this Paragraph 12 ("Leased
Parts") and will form a part of each lease of any Leased
Part by the Buyer from the Seller after the date hereof.
Except for the description of the Leased Part, the Lease
Term, the Leased Part delivery and return locations and
the Lease Charges (defined below in Subparagraph 12.4),
all other terms and conditions appearing on any order
form or other document pertaining to Leased Parts will be
deemed inapplicable, and in lieu thereof the terms and
conditions of this Paragraph 12 will prevail. For
purposes of this Paragraph 12, the term "Lessor" refers
to the Seller and the term "Lessee" refers to the Buyer.
Parts not included in Appendix "A" to this Paragraph 12
may be supplied under a separate lease agreement between
the Seller and the Buyer.
12.2 Lease Procedure: Spare Parts Leased
At the Lessee's request by telephone (to be confirmed
promptly in writing), telegram, letter or other written
instrument, the Lessor will lease Leased Parts, which
will be made available in accordance with Subparagraph
4.2.3 of this Letter Agreement, to the Lessee as
substitutes for parts withdrawn from an Aircraft for
repair or overhaul. Each lease of Leased Parts will be
evidenced by a lease document ("Lease") issued by the
Lessor to the Lessee no later than seven (7) days after
delivery of the Leased Part.
12.3 Lease Term: Return
The term of the lease ("Lease Term") will commence on the
date of receipt of the Leased Part by the Lessee or its
agent at the Lessee's facility in a serviceable condition
and will end on the date of receipt at the Lessor's
facility of the Leased Part in a serviceable condition.
The Lease Term will not exceed ninety (90) days after the
Lessee's receipt of the Leased Part, unless extended by
written agreement between Lessor and Lessee within such
ninety (90)-day period (such extension not to exceed an
additional ninety (90) days). Notwithstanding the
foregoing, the Lease Term will end in the event, and upon
the date, of exercise of the Lessee's option to purchase
the Leased Part, as provided herein.
12.4 Lease Charges and Taxes
The Lessee will pay the Lessor (a) a daily rental charge
for the Lease Term in respect of each Leased Part equal
to one-three-hundred-sixty-fifth (1/365) of the Catalog
Price of such Leased Part, as set forth in the Seller's
Spare Parts Price List in effect on the date of
commencement of the Lease Term, (b) any reasonable
additional costs which may be incurred by the Lessor
solely and directly as a result of such Lease, such as
inspection, test, repair, overhaul and repackaging costs
as required to place the Leased Part in serviceable
condition, (c) all transportation and insurance charges
and (d) any taxes (excluding any taxes based on income or
gross receipts), charges or customs duties imposed upon
the Lessor or its property as a result of the lease,
sale, delivery, storage or transfer of any Leased Part
(the "Lease Charges"). All payments due hereunder will be
made in accordance with Paragraph 6 of this Letter
Agreement.
In the event that the Leased Part has not been returned
to the Lessor's designated facilities within the time
period provided in Subparagraph 12.3 above, the Lessor
will be entitled, in addition to any other remedy it may
have at law or under this Paragraph 12, to charge to the
Lessee, and the Lessee will pay, all of the charges
referred to in this Subparagraph 12.4 accruing for each
day after the end of the Lease Term and for as long as
such Leased Part is not returned to the Lessor and as
though the Lease Term were extended to the period of such
delay.
Notwithstanding the foregoing, the Lessor hereby agrees
not to charge the Lessee any daily rental charge as
referred to above in Subparagraph 12.4(a) from the date
that is ninety (90) days after the date of receipt of the
Leased Part by the Lessee, provided that (i) the Lessee
reasonably demonstrates that the repair station
designated by the Lessor and to which the Lessee has sent
the damaged item (which is the cause of the lease
described in this Paragraph 12) (the "Damaged Item") has
failed to perform the repair of the Damaged Item within
ninety (90) days, and (ii) the repair station is unable
to provide adequate and satisfactory reasons for its
nonperformance.
12.5 Title
Title to each Leased Part will remain with the Lessor at
all times unless the Lessee exercises its option to
purchase or exchange it in accordance with Subparagraph
12.8 of this Letter Agreement, in which case title will
pass to the Lessee in accordance with Paragraph 7 of this
Letter Agreement.
12.6 Risk of Loss
Except for normal wear and tear, each Leased Part will be
returned to the Lessor in the same condition as when
delivered to the Lessee. However, the Lessee will not
without the Lessor's prior written consent repair, modify
or alter any Leased Part (other than routine
maintenance). Risk of loss or damage to each Leased Part
will remain with the Lessee until such Leased Part is
redelivered to the Lessor at the return location
specified in the applicable Lease. If a Leased Part is
lost or damaged beyond repair, the Lessee will be deemed
to have exercised its option to purchase the part in
accordance with Subparagraph 12.8 of this Letter
Agreement, as of the date of such loss or damage.
12.7 Record of Flight Hours
All flight hours accumulated by the Lessee on each Leased
Part during the Lease Term will be documented by the
Lessee. Records will be delivered to the Lessor upon
return of such Leased Part to the Lessor. In addition,
all documentation pertinent to inspection, maintenance
and/or rework of the Leased Part to maintain said Leased
Part serviceable in accordance with the standards of the
Lessor will be delivered to the Lessor upon return of the
Leased Part to the Lessor on termination of the Lease.
Such documentation will include but not be limited to
evidence of incidents such as hard landings,
abnormalities of operation and corrective action taken by
the Lessee as a result of such incidents.
12.8 Option to Purchase
The Lessee may at its option, exercisable by written
notice given to the Lessor, elect during or at the end of
the Lease Term to purchase the Leased Part, in which case
the then current purchase price for such Leased Part as
set forth in the Seller's Spare Parts Price List will be
paid by the Lessee to the Lessor. The immediately
preceding sentence will apply to new Leased Parts only.
In the event the Leased Part is not new at commencement
of the Lease Term, eighty-five percent (85%) of the then
current purchase price for such Leased Part will be paid
by the Lessee to the Lessor. Such option will be
contingent upon the Lessee providing the Lessor with
evidence satisfactory to the Lessor that the original
part fitted to the Aircraft is beyond economical repair.
Should the Lessee exercise such option, *** of the Lease
rental charges already invoiced pursuant to Subparagraph
12.4 (a) will be credited to the Lessee against the said
purchase price of the Leased Part.
Should the Lessee fail to return the Leased Part to the
Lessor at the end of the Lease Term, such failure will be
deemed to be an election by the Lessee to purchase the
Leased Part.
In the event of purchase, the Leased Part will be
warranted in accordance with Clause 11 of this Letter
Agreement as though such Leased Part were a Seller Part,
provided, however, that (i) the Seller will prorate the
full Warranty Period granted to the Buyer according to
the actual usage of such Leased Part and (ii) in no event
will such Warranty Period be less than six (6) months
from the date of purchase of such Leased Part. A warranty
granted under this Subparagraph 12.8.3 will be in
substitution for the warranty granted under Subparagraph
12.9 at the commencement of the Lease Term.
12.9 Warranties
The Lessor, in its capacity as "Lessee," under its
arrangements with the Manufacturer, in its capacity as
"Lessor," has negotiated and obtained the following
warranties from the Manufacturer with respect to the
Leased Parts, subject to the terms, conditions,
limitations and restrictions all as hereinafter set out.
The Lessor hereby assigns to the Lessee, and the Lessee
hereby accepts, all of the rights and obligations of the
Lessor in the Lessors's capacity as "Lessee" as aforesaid
under the said warranties and the Lessor subrogates the
Lessee as to all such rights and obligations in respect
of Leased Parts during the Lease Term with respect
thereto. The Lessor hereby warrants to the Lessee that
the Lessor has all requisite authority to make the
foregoing assignment and effect the foregoing subrogation
to and in favor of the Lessee and that the Lessor will
not enter into any amendment of the provisions so
assigned or subrogated without the prior written consent
of the Lessee. Capitalized terms utilized in the
following provisions have the meanings assigned thereto
in this Letter Agreement, except that the term "Lessor"
refers to the Manufacturer and the term "Lessee" refers
to the Lessor. References to clauses and paragraphs in
the following provisions refer to clauses in the
Agreement and/or to paragraphs in this Letter Agreement.
QUOTE
12.9.1 The Lessor warrants that each Leased Part will at the
time of delivery thereof:
(a) be free from defects in material,
(b) be free from defects in workmanship, including,
without limitation, processes of manufacture,
(c) conform to the applicable specification for such
part,
(d) be free from defects in design (including,
without limitation, selection of materials)
having regard to the state of the art at the
date of such design,
(e) permit complete interchangeability among
Aircraft and parts of like part-numbered parts,
and
(f) be free and clear of all liens and other
encumbrances.
12.9.2 Survival of Warranties
With respect to each Leased Part, the warranty set forth
above in Subparagraph 12.9.1(a) will not survive
delivery, and the warranties set forth above in
Subparagraphs 12.9.1(b) through 12.9.1(f) will survive
delivery only upon the conditions and subject to the
limitations set forth below in Subparagraphs 12.9.3
through 12.9.8.
12.9.3 Warranty and Notice Periods
The Lessee's remedy and the Lessor's obligation and
liability under this Subparagraph 12.9, with respect to
each defect, are conditioned upon (i) the defect having
become apparent within the Lease Term and (ii) the
Lessor's warranty administrator having received written
notice of the defect from the Lessee within *** of
discovering the defect giving rise to a warranty claim
under this Subparagraph 12.9, but in no event later than
*** after such defect becomes apparent.
12.9.4 Return and Proof
The Lessee's remedy and the Lessor's obligation and
liability under this Subparagraph 12.9, with respect to
each defect, are also conditioned upon:
(a) the return by the Lessee as soon as practicable
to the return location specified in the
applicable Lease, or such other place as may be
mutually agreeable, of the Leased Part claimed
to be defective, and
(b) the submission by the Lessee to the Lessor's
warranty administrator of reasonable proof that
the claimed defect is due to a matter embraced
within the Lessor's warranty under this
Subparagraph 12.9 and that such defect did not
result from any act or omission of the Lessee,
including but not limited to any failure to
operate or maintain the Leased Part claimed to
be defective or the Aircraft in which it was
installed in accordance with the Lessee's
FAA-approved maintenance program.
12.9.5 Remedies
The Lessee's remedy and the Lessor's obligation and
liability under this Subparagraph 12.9 with respect to
each defect are limited to the repair of such defect in
the Leased Part in which the defect appears, or, as
mutually agreed, to the replacement of such Leased Part
with a similar part free from defect.
Any replacement part furnished under this Subparagraph
12.9.5 will for the purposes of this Letter Agreement be
deemed to be the Leased Part so replaced.
12.9.6 Suspension and Transportation Costs
12.9.6.1 If a Leased Part is found to be defective and is covered
by this warranty, the Lease Term and the Lessee's
obligation to pay rental charges as provided in
Subparagraph 12.4(a) of this Letter Agreement will be
suspended from the date on which the Lessee notifies the
Lessor of such defect until the date on which the Lessor
has repaired, corrected or replaced the defective Leased
Part, provided, however, that the Lessee has withdrawn
such defective Leased Part from use, promptly after
giving such notice to the Lessor. If the defective Leased
Part is replaced, such replacement will be deemed to no
longer be a Leased Part under the Lease as of the date on
which such part was received by the Lessor at the return
location specified in the applicable Lease.
If a Leased Part is found to be defective on first use by
the Lessee and is covered by this warranty, no rental or
other charges as provided in Subparagraph 12.4(a) will
accrue and be payable by the Lessee until the date on
which the Lessor has repaired, corrected or replaced the
defective Leased Part in a manner satisfactory to the
Lessee.
12.9.6.2 All transportation and insurance costs associated with
the return of the defective Leased Part to the Lessor and
the return of the repaired, corrected or replacement part
to the Lessee will be borne by the Lessor.
12.9.7 Wear and Tear
Normal wear and tear and the need for regular maintenance
and overhaul will not constitute a defect or
nonconformance under this Subparagraph 12.9.
12.9.8 Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies
The Lessee and the Lessor recognize and agree that the
Exclusivity of Warranties and General Limitations of
Liability provisions and the Duplicate Remedies
provisions contained in Clause 12 of the Agreement will
also apply to the foregoing warranties provided for in
this Subparagraph 12.9.
UNQUOTE
In consideration of the assignment and subrogation by the
Seller under this Subparagraph 12.9 in favor of the Buyer
in respect of the Seller's rights against and obligations
to the Manufacturer under the provisions quoted above,
the Buyer hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions
and limitations therein contained.
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS
OF LIABILITY AND DUPLICATE REMEDIES
THIS PARAGRAPH 12 (INCLUDING ITS SUBPROVISIONS) SETS
FORTH THE EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND
EXCLUSIVE OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE
REMEDIES AVAILABLE TO THE BUYER, WHETHER UNDER THIS
LETTER AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY LEASED PART
DELIVERED UNDER THIS LETTER AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS PARAGRAPH 12 ARE ADEQUATE AND SUFFICIENT
TO PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR
PROBLEM OF ANY KIND IN THE GOODS AND SERVICES SUPPLIED
UNDER THIS LETTER AGREEMENT. THE BUYER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS,
GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER
RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR
STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY
NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY
LEASED PART DELIVERED UNDER THIS LETTER AGREEMENT,
INCLUDING BUT NOT LIMITED TO, UNLESS OTHERWISE PROVIDED
FOR IN THIS PARAGRAPH 12:
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING
ACTIONS FOR NEGLIGENCE, RECKLESSNESS,
INTENTIONAL TORTS, IMPLIED WARRANTY IN TORT
AND/OR STRICT LIABILITY;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE
UNIFORM COMMERCIAL CODE, OR ANY OTHER STATE OR
FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY
INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE
OR AGENCY;
(6) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE
COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THE
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY
AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART PROVIDED UNDER THE
AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER AGREEMENT WILL NOT
BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE
EVENT THAT ANY PROVISION OF THIS PARAGRAPH 12 SHOULD FOR
ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE,
THE REMAINDER OF THIS PARAGRAPH 12 WILL REMAIN IN FULL
FORCE AND EFFECT.
The remedies provided to the Buyer under this Paragraph
12 as to any defect in respect of the Aircraft or any
part thereof are not cumulative. The Buyer will be
entitled to the one remedy which provides the maximum
benefit to it, as the Buyer may elect, pursuant to the
terms and conditions of this Paragraph 12 for any such
particular defect for which remedies are provided under
this Paragraph 12; provided, however, that, *** the Buyer
will not be entitled to elect a remedy under one part of
this Paragraph 12 which constitutes a duplication of any
remedy elected by it under any other part hereof for the
same defect. The Buyer's rights and remedies *** arising
under these warranties *** covered by this Paragraph
12.4.
APPENDIX "A" TO CLAUSE 12
SELLER PARTS LEASING LIST
(Leased Parts)
AILERONS
AUXILIARY POWER UNIT (APU) DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
WING SLATS
SPOILERS
AIRBRAKES
WING TIPS
RADOMES
13. TURN-AROUND TIME ***
13.1 In respect of Seller Parts (excluding Leased Parts), the
Seller *** from receipt of a given Seller Part at the
repair facility to dispatch of the repaired Seller Part
to the Buyer's facility ("Seller Part TAT"). Should the
Seller determine that the Seller Part TAT will not be
met, the Seller will promptly notify the Buyer and ***.
13.2 In respect of Leased Parts (other than nose gear and main
landing gear), the Seller *** from receipt of a given
Leased Part at the repair facility to dispatch of the
repaired Leased Part to the Buyer's facility ("Leased
Part TAT"). During this ***, conditions outlined in the
first paragraph of Subparagraph 12.4 above will apply.
Should the Seller determine that the Leased Part TAT will
not be met, the Seller will promptly notify the Buyer and
***.
13.3 In respect of nose gear and main landing gear, the Seller
*** from receipt of a given component at the repair
facility to dispatch of the repaired component to the
Buyer's facility ("Gear TAT"). With respect to any
replacement component the Buyer temporarily leases during
this ***, the Buyer will pay the Seller ***.
13.4 In respect of Vendor spare parts, *** are set forth in
the Supplier Product Support Agreements. ***
14. TERMINATION
Any termination under Clause 10, 11 or 21 of the
Agreement or under the Letter Agreements thereto will
discharge all obligations and liabilities of the parties
hereunder with respect to such undelivered Material,
services, data or other items to be purchased hereunder
that are applicable to those undelivered Aircraft as to
which the Agreement has been terminated. Termination
under this Paragraph 14 notwithstanding new and unused
Material in excess of the Buyer's requirements due to
such Aircraft cancellation will be repurchased by the
Seller as provided in Subparagraph 10.2 of this Letter
Agreement.
15. ASSIGNMENT
This Letter Agreement may be assigned in accordance with
Clause 19 of the Agreement.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 2
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: DELIVERIES
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
2 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. [INTENTIONALLY LEFT BLANK]
2. RECONFIRMABLE AIRCRAFT
In order to provide the Buyer with flexibility to meet
its future fleet mix requirements, the Seller grants the
Buyer the right to reconfirm its order for each and any
Reconfirmable Aircraft. The Buyer will notify the Seller
in writing by no later than *** before the scheduled
month of delivery of a Reconfirmable Aircraft as to
whether it reconfirms the order for the applicable
Reconfirmable Aircraft. Upon reconfirmation of a
Reconfirmable Aircraft by the Buyer, such Reconfirmable
Aircraft will be considered Firm Aircraft for all
purposes under the Agreement.
In respect of Reconfirmable Aircraft for which the Buyer
does not reconfirm its order, ***. Upon such
nonreconfirmation, the Buyer's rights with respect to the
Reconfirmable Aircraft that was not reconfirmed will
expire and the parties will have no further obligations
to one another with respect to such Reconfirmable
Aircraft.
3. *** DELIVERIES
***
4. ***
4.1 ***
(i) ***
(ii) ***
(iii) ***
(a) ***
(b) ***
(iv) ***
(vi) ***
5. LEASED AIRCRAFT
If the Buyer wishes to lease A330 or A340 aircraft, the
Seller will assist the Buyer in locating such aircraft
(the "Leased Aircraft") from leasing companies. In the
event that the Leased Aircraft need to have a ***.
6. ***
6.1 ***
6.2 ***
7. EXCUSABLE DELAYS
7.1 Unanticipated Delay
Subclause 10.2 of the Agreement is hereby amended as
follows:
***
The remainder of such Subclause 10.2 remains unchanged.
7.2 Anticipated Delay
***
The remainder of such Subclause 10.3 remains unchanged.
8. INEXCUSABLE DELAYS
8.1 Subclause 11.1 of the Agreement is hereby amended as follows:
***.
8.2 Subclause 11.4 of the Agreement is hereby amended as follows:
***.
9. ***
The Seller will consider in good faith a request of the
Buyer to ***. The Buyer will pay all of the Seller's
out-of-pocket expenses arising out of ***.
10. BUYER FURNISHED EQUIPMENT
***
11. 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 11 will
be void and of no force or effect. Notwithstanding the
preceding sentence, the terms of Subclauses 19.5 and 19.6
of the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 3
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: ADDITIONAL AIRCRAFT
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
3 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. SCOPE
The terms and conditions set out in the Agreement will be
extended to apply for the Additional Aircraft, so long as
all deliveries for the Additional Aircraft are scheduled
by ***. However, in the event that the Manufacturer's
Commercial Constraints prevent the Seller from scheduling
delivery of an Additional Aircraft by ***, such deadline
will be extended to such later delivery date relating to
the applicable Additional Aircraft.
2. DELIVERIES
Upon the Buyer's written request from time to time, the
Seller will offer the Buyer delivery positions for
Additional Aircraft by month and year, subject to the
Manufacturer's Commercial Constraints and Industrial
Constraints at the time of request.
Delivery positions offered by the Seller for Additional
Aircraft will be held for the Buyer during the five (5)
Working Day period following the Seller's offer. The
Buyer may exercise its option to reserve the delivery
position for each such Additional Aircraft
(i) by written notice to the Seller and by making a
nonrefundable deposit payable to the Seller ***
due as set forth in Subclause 6.2.2.2 of the
Agreement, and
(ii) provided that at no time will the number of
Reconfirmable Aircraft exceed the number of Firm
Aircraft then on order, plus the number of
Aircraft already delivered to the Buyer, ***.
***
3. [INTENTIONALLY LEFT BLANK]
4. 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 4 will
be void and of no force or effect. Notwithstanding the
preceding sentence, the terms of Subclauses 19.5 and 19.6
of the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 4
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: CONVERSION RIGHTS
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
4 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. CONVERSION RIGHT
1.1 In order to provide the Buyer with additional flexibility
to meet its future fleet mix requirements, the Seller
grants the Buyer aircraft type conversion rights under
the terms and conditions contained in this Paragraph 1
(the "Wide-Body Conversion Right").
(i) The Conversion Right will grant the Buyer the right
to convert every Firm Aircraft and Reconfirmable
Aircraft into either A330-200 Aircraft, A330-300
Aircraft, A340-200 Aircraft or A340-300 Aircraft,
as applicable, beginning with the *** in the
schedule set forth in Clause 9 of the Agreement.
(ii) The Conversion Right will be exercised by the Buyer
no later than
(a) ***, and
(b) *** to be converted into A340-200 Aircraft.
The Seller will endeavor to ***, subject to (i) the
Manufacturer's then existing Commercial Constraints and
Industrial Constraints and (ii) offers to other carriers.
Further, should the Seller or the Manufacturer or any of
their Affiliates engaged in the sale of aircraft of the
same type as the Aircraft ***.
(iii) The Conversion Right will be subject to the
Manufacturer's Commercial Constraints and
Industrial Constraints at the time the Buyer elects
to exercise its Conversion Right.
(iv) The Conversion Right will be exercised ***.
1.2 The Buyer's exercise of its Conversion Right with respect
to a particular Aircraft will result in an adjustment to
the Predelivery Payment Reference Price and Predelivery
Payments due in respect of the converted Aircraft (a
"Converted Aircraft").
If the Predelivery Payment Reference Price for a
Converted Aircraft is higher than it was for the Aircraft
from which it was converted (the "Original Aircraft"),
then the difference between the Predelivery Payments the
Buyer has paid and what it would have paid had the
Converted Aircraft been an Original Aircraft will be due
within three (3) Working Days of conversion, and
conversion will be effective when the Buyer pays such
difference.
***
2. [INTENTIONALLY LEFT BLANK]
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 19.5 and 19.6
of the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 5
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: PURCHASE INCENTIVES
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
5 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. ***
1.1 ***
1.2 ***
1.3 [INTENTIONALLY LEFT BLANK]
1.4. ***
1.5 ***
1.6 [INTENTIONALLY LEFT BLANK]
1.7 [INTENTIONALLY LEFT BLANK]
1.8 [INTENTIONALLY LEFT BLANK]
2. ***
2.1 ***
2.1.1 ***
2.1.2 ***
2.1.3 ***
2.2 ***
3. PROPULSION SYSTEMS INCENTIVES
Except as otherwise agreed to by the Buyer and the
manufacturer of the Propulsion Systems and notified to
the Seller, the Propulsion Systems Reference Prices for
the engines are subject to escalation to the date of
delivery of the applicable Aircraft by applying the
Propulsion Systems' manufacturers' price revision
formulas (set forth in Exhibit "H-1" and "H-2" to the
Agreement) and to changes imposed by the Propulsion
Systems' manufacturers.
The Buyer will negotiate directly with the Propulsion
Systems' manufacturers engine pricing, credits,
escalation, and other commercial issues. As a result of
such negotiation, the Propulsion Systems' manufacturer's
price revision formula in Exhibit "H-1" and "H-2" to this
Agreement may be revised.
4. ***
5. 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 5 will
be void and of no force or effect. Notwithstanding the
preceding sentence, the terms of Subclauses 19.5 and 19.6
of the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Its: Treasurer
Date: November 24, 1998
APPENDIX 1
AIRFRAME PRICE REVISION FORMULA
FOR ***
l. BASE PRICE
The Base Price of the *** is as quoted in Subparagraph
1.5 of Letter Agreement No. 5 to the Agreement.
2. BASE PERIOD
***
This Base Price is subject to adjustment for changes in
economic conditions as measured by data obtained from the
United States Department of Labor, Bureau of Labor
Statistics, and in accordance with the provisions of
Paragraphs 4 and 5 of this Appendix 1.
ECIb and ICb index values indicated in Paragraph 4 of
this Appendix 1 are based on publications available at
the date of signature of the Agreement and are United
States Department of Labor Bureau of Labor Statistics
computations corresponding to certain base years as
stipulated below in Paragraph 3. Should the Bureau of
Labor Statistics change such base year, it will be
necessary to restate such values in an appropriate
manner. Other changes (such as benchmark revision),
except those related to established errors from the
Bureau of Labor Statistics, will not be taken into
consideration.
3. REFERENCE INDEXES
***
Material Index: "Industrial Commodities Index"
(hereinafter referred to as "ICI-Index"), published
monthly by the United States Department of Labor, Bureau
of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: "Producer prices and price indexes for
commodity groupings and individual items"). (Base year
1982 = 100.)
4 - REVISION FORMULA
***
In determining the Revised Base Price at delivery of the
Aircraft, each quotient will be calculated to the nearest
ten thousandth (4 decimals). If the next succeeding place
is five (5) or more, the preceding decimal place will be
raised to the next higher figure. The final factor will
be rounded to the nearest ten thousandth (4 decimals).
After final computation, Pn will be rounded to the next
whole number (0.5 or more rounded to l).
5. GENERAL PROVISIONS
5.1 Substitution of Indexes
In the event that:
(i) the United States Department of Labor
substantially revises its methodology for
calculating any of the indexes referred to here
above, or
(ii) the United States Department of Labor
discontinues, either temporarily or permanently,
any of the indexes referred to here above and
publication thereof, or
(iii) the data samples used to calculate any of the
indexes referred to here above are substantially
changed,
The Seller and the Buyer will agree on a substitute
index.
Such substitute index will reflect as closely as possible
the actual variations in wage rates or in material
prices, as the case may be, used in the calculation of
the original index.
As a result of this selection of a substitute index, the
Seller and the Buyer will agree on appropriate
adjustments to be made to the price revision formula;
such adjustments may include, but will not be limited to,
allowing to combine the successive utilization of the
original index and of the substitute index, and other
methodologies designed to ensure consistency in the
numerators and denominators of the various quotients.
5.2 Final Index Values
The Revised Base Price at the date of Aircraft delivery
will be final and will not be subject to further
adjustments, of any kind, to the applicable indexes as
published at the date of Aircraft delivery.
LETTER AGREEMENT NO. 6
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: SPECIFICATION MATTERS
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
6 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. [INTENTIONALLY LEFT BLANK]
2. ***
2.1 ***
2.2 ***
2.3 ***
3. ***
3.1 ***
3.2 ***
4. AIRWORTHINESS DIRECTIVES
4.1 ***
4.2 ***
5. ENGINE CHOICE
The Buyer has initially selected the Xxxxx & Xxxxxxx
PW4168 Propulsion Systems to equip the Firm A330-300
Aircraft. Should the Buyer choose at a later stage to
equip the Reconfirmable A330-200 Aircraft or the
Reconfirmable A330-300 Aircraft with
(i) Xxxxx & Whitney PW4173 Propulsion Systems,
(ii) General Electric propulsion systems, or
(iii) Rolls-Royce propulsion systems,
the Seller ***.
6. SERVICE BULLETINS
***
7. ***
7.1 ***
7.2 ***
7.3 ***
8. 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 19.5 and 19.6
of the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 7
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: PRODUCT SUPPORT
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
7 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. PRODUCT SUPPORT RESPONSIVENESS
1.1 The Seller and the Manufacturer will promptly respond to,
and deal with, any correspondence or request from the
Buyer with respect to product support issues.
1.2 The precise contents of the product support package may
be adjusted over time, by way of exchanges within the
envelope of such package, to better match the Buyer's
product support needs.
2. WARRANTIES
2.1 Use of Credits
***
2.2 ***
2.3 ***
2.4 Vendor Warranty Period
2.4.1 ***
2.4.2 The Seller will assist the Buyer in its efforts ***.
2.5 No Fault-Found Policy
The Seller has developed a "No Fault Found Policy"
covering Vendor Parts and Seller Parts, as specified in
the booklet SG-S/921.0067/96. Such policy will not be
changed in a manner adverse to the Buyer.
3. SERVICE LIFE POLICY
3.1 The Service Life Policy period specified in Subclause
12.2.2 of the Agreement ***.
3.2 The Service Life Policy formula specified in Subclause
12.2.3 of the Agreement ***
***
4. TECHNICAL PUBLICATIONS
4.1 The Buyer and the Seller agree that an integral portion
of the Technical Publications product support is the
implementation of a functioning "E-Pubs" system by the
Buyer prior to delivery of the first Aircraft.
Accordingly, the Buyer and the Seller will together
devise a plan to (a) make available to the Buyer on such
"E-Pubs" system all Technical Publications now only
available on CD-ROM, (b) the Buyer and the Seller will
commit to implement "E-Pubs" as soon as practicable, and
(c) agree on the allocation of the costs of any necessary
interim implementation.
4.2 Aircraft MSG-3 analysis will be provided to the Buyer as
part of the Technical Publications package.
4.3 The Seller will provide the Buyer an interior and
exterior aircraft placards manual specifying which
placards are required for aircraft dispatch.
4.4 ***
4.5 On the Buyer's request, the Seller will provide the Buyer
certification data for specific material, including
flammability coupons, when such data is available to the
Seller.
4.6 ***
5. TRAINING
5.1 ***
5.2 ***
5.3 ***
5.4.1 At the Buyer's request, the Seller will provide the Buyer
in a timely manner with *** data as developed by the
Seller, ***.
5.4.2 ***
5.5 The Buyer will have access to the Seller's ***.
5.6 ***
6. MAINTENANCE PLANNING
***
7. ENTRY-INTO-SERVICE
7.1 *** the Seller will provide the Buyer with *** Customer
Support Representatives and Maintenance Instructors ***.
7.2 The Seller and the Buyer will review the operations and
maintenance of the Aircraft fleet after the end of the
second year of the Buyer's operation of the Aircraft,
***.
7.3 ***
8. TOOLING
8.1 Following the Initial Provisioning Conference, the Buyer
will endeavor to obtain from the relevant Vendors routine
maintenance equipment and tooling prior to delivery of
the first Aircraft. The Seller will assist the Buyer in
such process, ***.
8.2 ***
8.3 On the reasonable request of the Buyer, the Seller will
cooperate with the Buyer in connection with the ***.
8.4 ***
9. ***
9.1 ***
9.2 ***
9.3 ***
9.4 ***
9.5 ***
10. 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 10 will
be void and of no force or effect. Notwithstanding the
preceding sentence, the terms of Subclauses 19.5 and 19.6
of the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
Its: Treasurer
Date: November 24, 1998
A330-200 (PW)
PW 4168A
LETTER AGREEMENT NO. 8A
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: A330-200 PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
8A (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
The Seller, in its capacity as "Buyer" under its
arrangement with the Manufacturer, has negotiated and obtained the
following performance and weight guarantees (the "Guarantees") from the
Manufacturer, in its capacity as "Seller" with respect to the A330-200
Aircraft, subject to the terms, conditions, limitations and restrictions
all as hereinafter set out. The Seller hereby assigns to the Buyer and the
Buyer hereby accepts, as to each A330-200 Aircraft delivered to the Buyer
under the Agreement, all of the rights and obligations of the Seller with
respect to such A330-200 Aircraft in its capacity as "Buyer" as aforesaid
under the said Guarantees and the Seller subrogates the Buyer into all such
rights and obligations in respect of such A330-200 Aircraft. The Seller
hereby warrants to the Buyer that it has all the requisite authority to
make the foregoing assignment and effect the foregoing subrogation to and
in favor of the Buyer and that it will not enter into any amendment of the
provisions so assigned or subrogated without the prior written consent of
the Buyer.
Capitalized terms used in the following quoted provisions
and not otherwise defined herein will have the meanings assigned thereto in
the Agreement except that the term "Seller" refers to the Manufacturer and
the term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable
to the A330-200 Aircraft as described in the Technical
Specification G.000.02000 Issue 3 dated 15th October 1996 as
amended by Specification Change Notice for the fitting of Xxxxx
and Xxxxxxx XX 4168A propulsion systems (the "Specification")
without taking into account any further changes thereto as
provided in the Agreement.
Notwithstanding the foregoing the Seller reserves the right to
increase the Design Weights above the weights shown in the
Specification in order to satisfy the Guarantees.
1 MISSION GUARANTEE
1.1 The A330-200 Aircraft will be capable of carrying a fixed zero
fuel weight of 340,000 lb over a guaranteed still air stage
distance of not less than *** nautical miles when operated under
the conditions defined below:
1.1.1 The departure airport conditions are such as to allow the
required take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
1.1.2 An allowance of 1,640 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed at a temperature of 77 (degree) F.
1.1.3 Climb from 1,500 ft pressure altitude up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of
0.82 at pressure altitudes of 35,000 ft and 39,000 ft and
descent to 1,500 ft pressure altitude are conducted in ISA+10
degreeC conditions. Climb and descent speeds below 10,000 ft
will be 250 knots CAS.
1.1.4 An allowance of 410 lb of fuel is included for approach and
landing at the destination airport.
1.1.5 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 1.1.3 above.
1.1.6 At the end of approach and landing 22,460 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) En-route reserves - 10% of flight time
2) Missed approach
3) Diversion in ISA+10 degreeC conditions over a still
air distance of 150 nautical miles starting and
ending at 1,500 ft pressure altitude
4) Holding for 30 minutes at 1,500 ft pressure altitude
in ISA+10 degreeC conditions.
2 MANUFACTURER'S WEIGHT EMPTY
2.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty of
***
2.2 For the purposes of this Paragraph 2 the Buyer's Manufacturer's
Weight Empty is the Manufacturer's Weight Empty defined in
Section 13-10.00.00 of the Specification and is subject to
adjustment as defined in Subparagraph 6.2.
3 NOISE
3.1 External
3.1.1 The Seller guarantees that the A330-200 Aircraft will be
certified in accordance with FAR Part 36 Noise Standards, issue
1978, including Amendment 36-15 Stage 3. The applicable noise
limits are as defined in paragraphs 36.201 and c36.5 (3).
3.2 Internal
3.2.1 Cockpit noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.82
in still air under ISA conditions, the guaranteed A-Weighted
Sound Pressure Level (SPL) will not exceed *** and the Speech
Interference Level (SIL) will not exceed ***.
3.2.2 Cabin noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.82
in still air under ISA conditions, the guaranteed A-Weighted
Sound Pressure Level (SPL) will not exceed *** and the Speech
Interference Level (SIL) will not exceed ***.
3.2.3 On the ground and under the conditions defined in Subparagraph
4.9 below the noise levels in the passenger compartment with
passenger doors open or closed the A-weighted Sound Pressure
Level (SPL) will not exceed *** and the Speech Interference
Level (SIL) will not exceed ***.
4 GUARANTEE CONDITIONS
4.1 The performance and noise certification requirements for the
A330-200 Aircraft, except where otherwise noted, will be as
stated in Section 02 of the Specification.
4.2 For the determination of FAR take-off and landing performance a
hard level dry runway surface with no runway strength
limitations, no obstacles, zero wind, atmosphere according to
ISA, except as otherwise noted and the use of speedbrakes,
flaps, landing gear and engines in the conditions liable to
provide the best results will be assumed.
4.2.1 When establishing take-off and second segment performance no air
will be bled from the engines for cabin air conditioning or
anti-icing.
4.3 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with
the maximum cabin altitude as specified in Section 21-30.32 of
the Specification and an average ventilation rate not less than
the amount defined in the Specification but no air will be bled
from the engines for anti-icing.
4.4 Climb, cruise and descent performance associated with the
Guarantees will include allowances for normal electrical load
and for normal engine air bleed and power extraction associated
with maximum cabin differential pressure as defined in Section
21-30.31 of the Specification. Cabin air conditioning management
during performance demonstration as described in Subparagraph
5.3 below may be such as to optimize the A330-200 Aircraft
performance while meeting the minimum air conditioning
requirements defined above. Unless otherwise stated no air will
be bled from the engines for anti-icing.
4.5 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for
normal operation unless otherwise stated.
4.6 Where applicable the Guarantees assume the use of an approved
fuel having a density of 6.7 lb/US gallon and a lower heating
value of 18,590 BTU/lb.
4.7 Speech interference level (SIL) is defined as the arithmetic
average of the sound pressure levels in the 1,000, 2,000, and
4,000 Hz octave bands A-weighted sound level (dBA) is as defined
in the American National Standard Specification ANSI.4-1971.
4.8 The sound levels guaranteed in Subparagraph 3.2: i) will be
measured at the positions defined in Section 03-83.10 of the
Specification ii) refer to an A330-200 Aircraft with standard
acoustic insulation and an interior completely furnished. The
effect on noise of Buyer furnished equipment other than
passenger seats will be the responsibility of the Buyer.
4.9 For the purposes of the sound levels guaranteed in Subparagraph
3.2.3 the APU and air conditioning system will be operating.
Sound level measurements may be made at the prevailing ambient
temperature with the air conditioning packs controlled to
approximate air conditioning machinery rotational speed
appropriate to an ambient temperature of 25(degree)C.
5 GUARANTEE COMPLIANCE
5.1 Compliance with the Guarantees will be demonstrated using
operating procedures and limitations in accordance with those
defined by the certifying Airworthiness Authority and by the
Seller unless otherwise stated.
5.2 Compliance with the take-off, second segment, en-route one
engine inoperative and landing elements of the Guarantees will
be demonstrated with reference to the approved Flight Manual.
5.3 Compliance with those parts of the Guarantees defined in
Paragraph 1 above not covered by the requirements of the
certifying Airworthiness Authority will be demonstrated by
calculation based on data obtained during flight tests conducted
on one (or more, at the Seller's discretion) A330 aircraft of
the same aerodynamic configuration as the A330-200 Aircraft and
incorporated in the In-Flight Performance Program and data bases
(the "IFP") appropriate to the A330-200 Aircraft.
5.4 Compliance with the Manufacturer's Weight Empty guarantee
defined in Paragraph 2 will be demonstrated with reference to a
weight compliance report.
5.5 Compliance with the noise guarantees defined in Subparagraph 3.2
will be demonstrated with reference to noise surveys conducted
on one (or more, at the Seller's discretion) A330 aircraft of an
acoustically similar standard as those A330-200 Aircraft.
5.6 Data derived from tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation
or extrapolation in accordance with established aeronautical
practices to show compliance with the Guarantees.
5.7 Compliance with the Guarantees is not contingent on engine
performance defined in the engine manufacturer's specification.
5.8 The Seller undertakes to furnish the Buyer with a report or
reports demonstrating compliance with the Guarantees at, or as
soon as possible after, the delivery of each of the A330-200
Aircraft.
6 ADJUSTMENT OF GUARANTEES
6.1 In the event of any change to any law, governmental regulation
or requirement or interpretation thereof ("rule change") by any
governmental agency made subsequent to the date of the Agreement
and such rule change affects the A330-200 Aircraft configuration
or performance or both required to obtain certification the
Guarantees will be appropriately modified to reflect the effect
of any such change.
6.2 The Guarantees apply to the A330-200 Aircraft as described in
the Preamble to this Letter Agreement and may be adjusted in the
event of :
a) Any further configuration change which is the subject
of a SCN
b) Variation in actual weights of items defined in Section
13-10 of the Specification
c) Changes required to obtain certification which cause
changes to the performance or weight of the A330-200
Aircraft
7. EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and
all other performance and weight guarantees of any nature which
may be stated, referenced or incorporated in the Specification
or any other document.
8. UNDERTAKING; REMEDIES
***
If a deficiency is shown to exist the Seller may develop and
install a fix to correct such deficiency. The delay period to
correct such deficiency will not exceed *** of the affected
A330-200 Aircraft.
If a deficiency is not corrected as set forth in the immediately
preceding paragraph the Seller will, *** in respect of such
deficient A330-200 Aircraft pay to the Buyer by way of
liquidated damages on the anniversary date of the delivery the
following amounts:
i) *** per pound deficient of guaranteed Manufacturer's
Weight Empty and/or
ii) *** per one percent deficiency resulting from the
deviation from the guaranteed Range defined in
Subparagraph 1.1 (parts of a percentage to be prorated).
Damages will be computed on the basis of the figures defined in
(i) and (ii) above and will be paid ***.
The Seller's maximum liability in respect of all deficiencies in
performance of any A330-200 Aircraft will be limited to the
payment of liquidated damages *** for each A330-200 Aircraft
whichever occurs first. Payment of liquidated damages as
aforesaid will be deemed to settle any and all claims and
remedies of the Buyer against the Seller in respect of
performance deficiencies.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer
and Seller recognize and agree that, except as otherwise
expressly provided in Paragraph 8 of this Letter Agreement, all
the provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will
apply to the foregoing performance guarantees.
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/ Xxxxxxx Lascaux
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 8B
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: A330-300 PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase Agreement
dated as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
8B (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
The Seller, in its capacity as "Buyer" under its
arrangement with the Manufacturer, has negotiated and obtained the
following performance and weight guarantees (the "Guarantees") from the
Manufacturer, in its capacity as "Seller" with respect to the A330-300
Aircraft, subject to the terms, conditions, limitations and restrictions
all as hereinafter set out. The Seller hereby assigns to the Buyer and the
Buyer hereby accepts, as to each A330-300 Aircraft delivered to the Buyer
under the Agreement, all of the rights and obligations of the Seller with
respect to such A330-300 Aircraft in its capacity as "Buyer" as aforesaid
under the said Guarantees and the Seller subrogates the Buyer into all such
rights and obligations in respect of such A330-300 Aircraft. The Seller
hereby warrants to the Buyer that it has all the requisite authority to
make the foregoing assignment and effect the foregoing subrogation to and
in favor of the Buyer and that it will not enter into any amendment of the
provisions so assigned or subrogated without the prior written consent of
the Buyer.
Capitalized terms used in the following quoted provisions and
not otherwise defined herein will have the meanings assigned thereto in the
Agreement except that the term "Seller" refers to the Manufacturer and the
term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable
to the A330-300 Aircraft as described in the Technical
Specification G.000.03000 Issue 6 dated 15th October 1996 as
amended by Specification Change Notices for:
i) the fitting of Xxxxx and Xxxxxxx XX0000X propulsion
systems
ii) the increase in the Design Weights to:
Maximum Take-Off Weight : 507,060 lb (230,000 kg)
Maximum Landing Weight : 407,855 lb (185,000 kg)
Maximum Zero Fuel Weight : 381,400 lb (173,000 kg)
(the "Specification") without taking into account any further
changes thereto as provided in the Agreement.
Notwithstanding the foregoing the Seller reserves the right to
increase the Design Weights above the weights shown in the
Specification in order to satisfy the Guarantees.
2. GUARANTEED PERFORMANCE
2.1 Take-off
2.1.1 When operated under the following conditions and with Air
Conditioning 'ON':
Pressure altitude : 21 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,499 ft
Take-off distance available : 10,499 ft
Accelerate-stop distance available : 10,499 ft
Slope : 0.1% uphill
Wind : Zero
Obstacles (height and distance : 23 ft/1,054 ft
from end of TOR) : 167 ft/14,000 ft
: 530 ft/42,472 ft
Runway surface : Dry
the maximum permissible weight at the start of ground run
will be not less than the guarantee value.
Nominal: 507,060 lb Guarantee: ***
2.1.2 When operated under the following conditions and with Air
Conditioning 'ON':
Pressure altitude : 21 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,499 ft
Take-off distance available : 10,499 ft
Accelerate-stop distance available : 10,499 ft
Slope : 0.1% downhill
Wind : Zero
Obstacles (height and distance : 13 ft/1,070 ft
from end of TOR) : 178 ft/9,500 ft
Runway surface : Dry
the maximum permissible weight at the start of ground run
will be not less than the guarantee value.
Nominal: 507,060 lb Guarantee: ***
2.1.3 When operated under the following conditions and with Air
Conditioning 'ON':
Pressure altitude : 1,024 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,502 ft
Take-off distance available : 10,502 ft
Accelerate-stop distance available : 10,502 ft
Slope : 0.3% uphill
Wind : Zero
Obstacles (height and distance : 14 ft/783 ft
from end of TOR) : 20 ft/1,159 ft
: 56 ft/2,090 ft
Runway surface : Dry
the maximum permissible weight at the start of ground run
will be not less than the guarantee value.
Nominal: 486,500 lb Guarantee: ***
2.1.4 When operated under the following conditions and with Air
Conditioning 'ON':
Pressure altitude : 1,416 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,827 ft
Take-off distance available : 10,827 ft
Accelerate-stop distance available : 10,827 ft
Slope : Zero
Wind : Zero
Obstacle (height and distance : 459 ft/11,512 ft
from end of TOR)
Runway surface : Dry
the maximum permissible weight at the start of ground run
will be not less than the guarantee value.
Nominal: 444,900 lb Guarantee: ***
2.1.5 When operated under the following conditions and with Air
Conditioning 'ON':
Pressure altitude : 5,341 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 12,000 ft
Take-off distance available : 12,000 ft
Accelerate-stop distance available : 12,000 ft
Slope : 0.5% downhill
Wind : Zero
Obstacles : None
Runway surface : Dry
the maximum permissible weight at the start of ground run
will be not less than the guarantee value.
Nominal: 463,100 lb Guarantee: ***
2.1.6 When operated under the following conditions and with Air
Conditioning 'ON':
Pressure altitude : 196 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,679 ft
Take-off distance available : 10,679 ft
Accelerate-stop distance available : 10,679 ft
Slope : 0.1% uphill
Wind : Zero
Obstacles (height and distance : 202 ft/8,727 ft
from end of TOR) : 246 ft/11,106 ft
Runway surface : Dry
the maximum permissible weight at the start of ground run
will be not less than the guarantee value.
Nominal: 498,300 lb Guarantee: ***
2.2 Second Segment Climb
The A330-300 Aircraft will meet FAR regulations for one
engine inoperative climb after take-off, undercarriage
retracted, at a weight corresponding to the stated weight
at the start of ground run at the altitude and
temperature and in the configuration of flap angle and
safety speed required to comply with the performance
guaranteed in Subparagraph 2.1.
2.3 En-route One Engine Inoperative
The A330-300 Aircraft will meet FAR regulations minimum
en-route climb gradient one engine inoperative and the
other operating at the maximum continuous thrust with air
conditioning on and anti-icing off at an A330-300
Aircraft gross weight of 450,000 lb in the cruise
configuration in ISA+10(degree)C conditions at a pressure
altitude of not less than the guarantee value.
Nominal: 18,450 ft Guarantee: ***
2.4 Landing Field Length
2.4.1 FAR certified wet landing field length at an A330-300
Aircraft gross weight of 407,855 lb at sea level pressure
altitude will be not greater than the guarantee value.
Nominal: 6,725 ft Guarantee: ***
2.4.2 FAR certified wet landing field length at an A330-300
Aircraft gross weight of 407,855 lb at a pressure
altitude of 5,431 ft will be not greater than the
guarantee value.
Nominal: 7,620 ft Guarantee: ***
2.5 Approach Climb
2.5.1 The A330-300 Aircraft will meet FAR regulations approach
climb gradient one engine inoperative and the other
operating at the maximum go-round thrust with air
conditioning on and anti-icing off at sea level pressure
altitude at an A330-300 Aircraft gross weight of 407,855
lb at a temperature of not less than the guarantee value.
Nominal: 44(degree)C Guarantee: ***
2.5.2 The A330-300 Aircraft will meet FAR regulations approach
climb gradient one engine inoperative and the other
operating at the maximum go-round thrust with air
conditioning on and anti-icing off at a pressure altitude
of 5,431 feet at an A330-300 Aircraft gross weight of
407,855 lb at a temperature of not less than the
guarantee value.
Nominal: 33(degree)C Guarantee: ***
2.6 Specific Range
The nautical miles per pound of fuel at an A330-300
Aircraft gross weight of 460,000 lb at a pressure
altitude of 35,000 ft in ISA+10(degree)C conditions at a
true Mach number of 0.82 will be not less than the
guarantee value
Nominal: 0.03485 nm/lb Guarantee: ***
3 MISSION GUARANTEES
3.1 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 3,653 nautical miles
(representative of PHL to FCO with a 28 knots tailwind)
when operated under the conditions defined below:
Nominal: 101,450 lb Guarantee: ***
3.1.1 The departure airport conditions are defined in
Subparagraph 2.1.2 above.
The destination airport conditions are as follows:
Pressure altitude : 14 ft
Landing distance available : 12,795 ft
Wind : Zero
Runway surface : Wet
Air conditioning : On
3.1.2 Allowances of 695 lb of fuel and 10 minutes are included
for taxi at the departure airport
3.1.3 Allowances of 1,670 lb of fuel and 3 minutes are included
for take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
3.1.4 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
33,000 ft and 37,000 ft and descent to 1,500 ft above the
destination airport are conducted in ISA+10(degree)C
conditions. Climb and descent speeds below 10,000 ft will
be 250 knots CAS.
3.1.5 Allowances of 420 lb of fuel and 4 minutes are included
for approach and landing at the destination airport.
3.1.6 Allowances of 290 lb of fuel and 5 minutes are included
for taxi at the destination airport.
3.1.7 Stage distance is defined as the distance covered during
climb, cruise and descent as described in Subparagraph
3.1.4 above.
3.1.8 At the end of approach and landing 20,950 lb of fuel will
remain in the tanks. This represents the estimated fuel
required for:
1) En-route reserves - 10% of flight time
2) Missed approach
3) Diversion in ISA+10(degree)C conditions
over a still air distance of 150 nautical
miles starting at 1,500 ft above the
destination airport and ending at 1,500 ft
pressure altitude
4) Holding for 30 minutes at 1,500 ft pressure
altitude in ISA+10(degree)C conditions.
3.2 In carrying a fixed payload of *** over a still air stage
distance of 3,653 nautical miles (representative of PHL
to FCO with a 28 knots tailwind) when operated under the
conditions defined in Subparagraph 3.1 above the block
fuel burnt will be not more than the guarantee value
Nominal: 106,900 lb Guarantee: ***
and the block time will not be more than the guarantee value
Nominal: 8 hours 5 minutes Guarantee: ***
Block fuel is defined as the fuel used during taxi,
take-off, climb, cruise, descent, and approach and
landing as described above in Subparagraphs 3.1.2 through
3.1.6 inclusive.
Block time is defined as the time for taxi, take-off,
climb, cruise, descent, and approach and landing as
described above in Subparagraphs 3.1.2 through 3.1.6
inclusive.
3.3 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 4,561 nautical miles
(representative of FCO to PHL with a 75 knots headwind)
when operated under the conditions defined below:
Nominal: 78,500 lb Guarantee: ***
3.3.1 The departure airport conditions are as follows:
Pressure altitude : 14 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 12,795 ft
Take-off distance available : 12,795 ft
Accelerate-stop distance available : 12,795 ft
Slope : Zero
Wind : Zero
Obstacles (height and distance : 17 ft/1,313 ft
from end of TOR) : 55 ft/3,479 ft
Runway surface : Dry
Air conditioning : On
The destination airport conditions are as follows:
Pressure altitude : 21 ft
Landing distance available : 10,499 ft
Wind : Zero
Runway surface : Wet
Air conditioning : On
3.3.2 Allowances of 695 lb of fuel and 10 minutes are included
for taxi at the departure airport
3.3.3 Allowances of 1,670 lb of fuel and 3 minutes are included
for take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
3.3.4 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
35,000 ft and 39,000 ft and descent to 1,500 ft above the
destination airport are conducted in ISA+10(degree)C
conditions. Climb and descent speeds below 10,000 ft will
be 250 knots CAS.
3.3.5 Allowances of 420 lb of fuel and 4 minutes are included
for approach and landing at the destination airport.
3.3.6 Allowances of 290 lb of fuel and 5 minutes are included
for taxi at the destination airport.
3.3.7 Stage distance is defined as the distance covered during
climb, cruise and descent as described in Subparagraph
3.3.4 above.
3.3.8 At the end of approach and landing 21,970 lb of fuel will
remain in the tanks. This represents the estimated fuel
required for:
1) En-route reserves - 10% of flight time
2) Missed approach
3) Diversion in ISA+10(degree)C conditions over a
still air distance of 150 nautical miles
starting at 1,500 ft above the destination
airport and ending at 1,500 ft pressure
altitude
4) Holding for 30 minutes at 1,500 ft pressure
altitude in ISA+10(degree)C conditions.
3.4 In carrying a fixed payload of *** over a still air stage
distance of 4,561 nautical miles (representative of FCO
to PHL with a 75 knots tailwind) when operated under the
conditions defined in Subparagraph 3.3 above the block
fuel burnt will be not more than the guarantee value
Nominal: 128,300 lb Guarantee: ***
and the block time will not be more than the guarantee value
Nominal: 9 hours 58 minutes Guarantee: ***
Block fuel is defined as the fuel used during taxi,
take-off, climb, cruise, descent, and approach and
landing as described above in Subparagraphs 3.3.2 through
3.3.6 inclusive.
Block time is defined as the time for taxi, take-off,
climb, cruise, descent, and approach and landing as
described above in Subparagraphs 3.3.2 through 3.3.6
inclusive.
3.5 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 3,291 nautical miles
(representative of CLT to LGW with a 29 knots tailwind)
when operated under the conditions defined below:
Nominal: 104,150 lb Guarantee: ***
3.5.1 The departure airport conditions are as follows:
Pressure altitude : 749 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,000 ft
Take-off distance available : 10,000 ft
Accelerate-stop distance available : 10,000 ft
Slope : 0.5% downhill
Wind : Zero
Obstacles : None
Runway surface : Dry
Air conditioning : On
The destination airport conditions are as follows:
Pressure altitude : 196 ft
Landing distance available : 9,075 ft
Wind : Zero
Runway surface : Wet
Air conditioning : On
3.5.2 Allowances of 695 lb of fuel and 10 minutes are included
for taxi at the departure airport
3.5.3 Allowances of 1,680 lb of fuel and 3 minutes are included
for take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
3.5.4 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
33,000 ft and 37,000 ft and descent to 1,500 ft above the
destination airport are conducted in ISA+10(degree)C
conditions. Climb and descent speeds below 10,000 ft will
be 250 knots CAS.
3.5.5 Allowances of 420 lb of fuel and 4 minutes are included
for approach and landing at the destination airport.
3.5.6 Allowances of 290 lb of fuel and 5 minutes are included
for taxi at the destination airport.
3.5.7 Stage distance is defined as the distance covered during
climb, cruise and descent as described in Subparagraph
3.5.4 above.
3.5.8 At the end of approach and landing 21,360 lb of fuel will
remain in the tanks. This represents the estimated fuel
required for:
1) En-route reserves - 10% of flight time
2) Missed approach
3) Diversion in ISA+10(degree)C conditions over a
still air distance of 150 nautical miles
starting at 1,500 ft above the destination
airport and ending at 1,500 ft pressure
altitude
4) Holding for 30 minutes at 1,500 ft pressure
altitude in ISA+10(degree)C conditions.
3.6 In carrying a fixed payload of *** over a still air stage
distance of 3,291 nautical miles (representative of CLT
to LGW with a 29 knots tailwind) when operated under the
conditions defined in Subparagraph 3.5 above the block
fuel burnt will be not more than the guarantee value
Nominal: 97,250 lb Guarantee: ***
and the block time will not be more than the guarantee value
Nominal: 7 hours 20 minutes Guarantee: ***
Block fuel is defined as the fuel used during taxi,
take-off, climb, cruise, descent, and approach and
landing as described above in Subparagraphs 3.5.2 through
3.5.6 inclusive.
Block time is defined as the time for taxi, take-off,
climb, cruise, descent, and approach and landing as
described above in Subparagraphs 3.5.2 through 3.5.6
inclusive.
3.7 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 4,104 nautical miles
(representative of LGW to CLT with a 75 knots headwind)
when operated under the conditions defined below:
Nominal: 90,050 lb Guarantee: ***
3.7.1 The departure airport conditions are as follows:
Pressure altitude : 196 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,364 ft
Take-off distance available : 10,364 ft
Accelerate-stop distance available : 10,364 ft
Slope : Zero
Wind : Zero
Obstacles (height and distance : 2 ft/515 ft
from end of TOR) : 35 ft/1,841 ft
: 61 ft/3,514 ft
Runway surface : Dry
Air conditioning : On
The destination airport conditions are as follows:
Pressure altitude : 749 ft
Landing distance available : 10,000 ft
Wind : Zero
Runway surface : Wet
Air conditioning : On
3.7.2 Allowances of 695 lb of fuel and 10 minutes are included
for taxi at the departure airport
3.7.3 Allowances of 1,680 lb of fuel and 3 minutes are included
for take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
3.7.4 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
35,000 ft and 39,000 ft and descent to 1,500 ft above the
destination airport are conducted in ISA+10(degree)C
conditions. Climb and descent speeds below 10,000 ft will
be 250 knots CAS.
3.7.5 Allowances of 420 lb of fuel and 4 minutes are included
for approach and landing at the destination airport.
3.7.6 Allowances of 290 lb of fuel and 5 minutes are included
for taxi at the destination airport.
3.7.7 Stage distance is defined as the distance covered during
climb, cruise and descent as described in Subparagraph
3.7.4 above.
3.7.8 At the end of approach and landing 21,360 lb of fuel will
remain in the tanks. This represents the estimated fuel
required for:
1) En-route reserves - 10% of flight time
2) Missed approach
3) Diversion in ISA+10(degree)C conditions over a
still air distance of 150 nautical miles
starting at 1,500 ft above the destination
airport and ending at 1,500 ft pressure
altitude
4) Holding for 30 minutes at 1,500 ft pressure
altitude in ISA+10(degree)C conditions.
3.8 In carrying a fixed payload of *** over a still air stage
distance of 4,104 nautical miles (representative of LGW
to CLT with a 74 knots headwind) when operated under the
conditions defined in Subparagraph 3.7 above the block
fuel burnt will be not more than the guarantee value
Nominal: 117,500 lb Guarantee: ***
and the block time will not be more than the guarantee value
Nominal: 9 hours 1 minute Guarantee: ***
Block fuel is defined as the fuel used during taxi,
take-off, climb, cruise, descent, and approach and
landing as described above in Subparagraphs 3.7.2 through
3.7.6 inclusive.
Block time is defined as the time for taxi, take-off,
climb, cruise, descent, and approach and landing as
described above in Subparagraphs 3.7.2 through 3.7.6
inclusive.
4. MISSION GUARANTEES (ETOPS Reserves)
4.1 For the purposes of the guarantees defined below in
Subparagraphs 4.2 through 4.5 inclusive the Critical
Point (the "CP") is defined as the point at a still air
distance of 1,158 nautical miles and 180 minutes from the
destination airport. After the CP the aircraft will be
operated under the conditions defined below (the "ETOPS
diversion"):
a) At the CP there is a simultaneous loss of one engine
and cabin pressurization becomes inoperative
b) Descent from the CP and the associated cruise
altitude to 10,000 ft pressure altitude at Mmo/Vmo
in ISA+10(degree)C conditions.
c) Cruise at Vmo at a pressure altitude of 10,000 ft in
ISA+10(degree)C conditions
d) Descent from 10,000 ft pressure altitude to 1,500
ft above the destination airport at 250 kts CAS in
ISA+10(degree)C conditions.
e) Hold for 15 minutes at 1,500 ft above the
destination airport at Green Dot speed in
ISA+10(degree)C conditions
f) Missed approach and go-round at the destination
airport in ISA+10(degree)C conditions
g) Approach and land at the destination airport.
4.2 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 3,653 nautical miles
(representative of PHL to FCO with a 28 knots tailwind
and including the 1,158 nautical miles from the CP to the
destination airport) when operated under the conditions
defined below:
Nominal: 95,850 lb Guarantee: ***
4.2.1 The departure airport conditions are defined in
Subparagraph 2.1.2 above.
The destination airport conditions are defined in
Subparagraph 3.1.2 above.
4.2.2 An allowances of 1,670 lb of fuel is included for
take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
4.2.3 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
33,000 ft and 37,000 ft to the CP are conducted in
ISA+10(degree)C conditions. Climb speed below 10,000 ft
will be 250 knots CAS.
4.2.4 Stage distance is defined as the distance covered during
climb and cruise to the CP plus the distance from the CP
to the destination airport descent as described in
Subparagraphs 4.1 and 4.2.3 above.
4.2.5 At the CP 54,550 lb of fuel will remain in the tanks.
This represents the estimated fuel required for:
1) Fuel for the ETOPS diversion as described in
Subparagraph 4.1 above
2) A 15% increase in the fuel required for the
ETOPS diversion to account for wind errors,
ice accretion, anti-icing on, APU operating,
weather avoidance and degraded aircraft
performance.
4.3 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 4,561 nautical miles
(representative of FCO to PHL with a 75 knots headwind
and including the 1,158 nautical miles from the CP to the
destination airport) when operated under the conditions
defined below:
Nominal: 73,150 lb Guarantee: ***
4.3.1 The departure and destination airport conditions are
defined in paragraph 3.3.1 above.
4.3.2 An allowances of 1,670 lb of fuel is included for
take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
4.3.3 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
35,000 ft and 39,000 ft to the CP are conducted in
ISA+10(degree)C conditions. Climb speed below 10,000 ft
will be 250 knots CAS.
4.3.4 Stage distance is defined as the distance covered during
climb and cruise to the CP plus the distance from the CP
to the destination airport descent as described in
Subparagraphs 4.1 and 4.3.3 above.
4.3.5 At the CP 53,650 lb of fuel will remain in the tanks.
This represents the estimated fuel required for:
1) Fuel for the ETOPS diversion as described in
Subparagraph 4.1 above
2) A 15% increase in the fuel required for the
ETOPS diversion to account for wind errors,
ice accretion, anti-icing on, APU operating,
weather avoidance and degraded aircraft
performance.
4.4 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 3,291 nautical miles
(representative of CLT to LGW with a 29 knots tailwind
and including the 1,158 nautical miles from the CP to the
destination airport) when operated under the conditions
defined below:
Nominal: 104,150 lb Guarantee: ***
4.4.1 The departure and destination airport conditions are
defined in Subparagraph 3.5.1 above.
4.4.2 An allowances of 1,680 lb of fuel is included for
take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
4.4.3 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
33,000 ft and 37,000 ft to the CP are conducted in
ISA+10(degree)C conditions. Climb speed below 10,000 ft
will be 250 knots CAS.
4.4.4 Stage distance is defined as the distance covered during
climb and cruise to the CP plus the distance from the CP
to the destination airport descent as described in
Subparagraphs 4.1 and 4.4.3 above.
4.4.5 At the CP 54,900 lb of fuel will remain in the tanks.
This represents the estimated fuel required for:
1) Fuel for the ETOPS diversion as described in
Subparagraph 4.1 above
2) A 15% increase in the fuel required for the
ETOPS diversion to account for wind errors,
ice accretion, anti-icing on, APU operating,
weather avoidance and degraded aircraft
performance.
4.5 The A330-300 Aircraft will be capable of carrying a
payload of not less than the guarantee value over a still
air stage distance of 4,104 nautical miles
(representative of LGW to CLT with a 74 knots headwind
and including the 1,158 nautical miles from the CP to the
destination airport) when operated under the conditions
defined below:
Nominal: 84,350 lb Guarantee: ***
4.5.1 The departure and destination airport conditions are
defined in Subparagraph 3.7.1 above.
4.5.2 An allowances of 1,680 lb of fuel is included for
take-off and climb to 1,500 ft above the departure
airport with acceleration to climb speed at a temperature
of 84(degree)F.
4.5.3 Climb from 1,500 ft above the departure airport up to
cruise altitude using maximum climb thrust and cruise at
a fixed Mach number of 0.82 at pressure altitudes of
35,000 ft and 39,000 ft to the CP are conducted in
ISA+10(degree)C conditions. Climb speed below 10,000 ft
will be 250 knots CAS.
4.5.4 Stage distance is defined as the distance covered during
climb and cruise to the CP plus the distance from the CP
to the destination airport descent as described in
Subparagraphs 4.1 and 4.5.3 above.
4.5.5 At the CP 54,100 lb of fuel will remain in the tanks.
This represents the estimated fuel required for:
1) Fuel for the ETOPS diversion as described in
paragraph 4.1 above
2) A 15% increase in the fuel required for the
ETOPS diversion to account for wind errors,
ice accretion, anti-icing on, APU operating,
weather avoidance and degraded aircraft
performance.
4.6 The mission payload guarantees and the mission fuel burn
guarantees defined above in Subparagraphs 3.1 through 3.8
inclusive and Subparagraphs 4.2 through 4.5 inclusive are
based on the Buyer's Manufacturer's Weight Empty as
defined in Subparagraph 5.2 below plus a fixed allowance
of 36,625 lb for Customer Changes and Operators Items.
5 MANUFACTURER'S WEIGHT EMPTY AND USABLE LOAD
5.1 The Seller guarantees a Buyer's Manufacturer's Weight
Empty of ***.
5.2 For the purposes of this Paragraph 5 and of Subparagraph
4.6 above the Buyer's Manufacturer's Weight Empty is the
Manufacturer's Weight Empty defined in Section
13-10.00.00 of the Specification amended by the
Specification Changes defined in the Preamble to this
Letter Agreement and is subject to adjustment as defined
in Subparagraph 9.2.
For information only an analysis of the Buyer's
Manufacturer's Weight Empty, Customer Changes, Operators
Items and Operating Weight Empty is shown in Appendix A
to this Letter Agreement.
6 NOISE
6.1 External
6.1.1 The Seller guarantees that the A330-300 Aircraft will be
certified in accordance with FAR Part 36 Noise Standards,
issue 1978, including Amendment 36-15 Stage 3. The
applicable noise limits are as defined in paragraphs
36.201 and c36.5 (3).
6.2 Internal
6.2.1 Cockpit noise
At a pressure altitude of 35,000 ft and a Mach number of
M=0.82 in still air under ISA conditions, the guaranteed
A-Weighted Sound Pressure Level (SPL) will not exceed ***
and the Speech Interference Level (SIL) will not exceed
***.
6.2.2 Cabin noise
At a pressure altitude of 35,000 ft and a Mach number of
M=0.82 in still air under ISA conditions, the guaranteed
A-Weighted Sound Pressure Level (SPL) will not exceed ***
and the Speech Interference Level (SIL) will not exceed
***.
6.2.3 On the ground and under the conditions defined in
Subparagraph 7.9 below the noise levels in the passenger
compartment with passenger doors open or closed the
A-weighted Sound Pressure Level (SPL) will not exceed ***
and the Speech Interference Level (SIL) will not exceed
***.
7 GUARANTEE CONDITIONS
7.1 The performance and noise certification requirements for
the A330-300 Aircraft, except where otherwise noted, will
be as stated in Section 02 of the Specification.
7.2 For the determination of FAR take-off and landing
performance a hard level dry runway surface with no
runway strength limitations, no obstacles, zero wind,
atmosphere according to ISA, except as otherwise noted
and the use of speedbrakes, flaps, landing gear and
engines in the conditions liable to provide the best
results will be assumed.
7.2.1 When establishing take-off and second segment performance
no air will be bled from the engines for cabin air
conditioning or anti-icing, except as otherwise noted.
7.3 When establishing the approach climb performance cabin
air conditioning will be operative with an average
ventilation rate not less than the amount defined in the
Specification but no air will be bled from the engines
for anti-icing.
7.4 The en-route one engine inoperative climb performance
will be established with the amount of engine air bleed
associated with the maximum cabin altitude as specified
in Section 21-30.32 of the Specification and an average
ventilation rate not less than the amount defined in the
Specification but no air will be bled from the engines
for anti-icing.
7.5 Climb, cruise and descent performance associated with the
Guarantees will include allowances for normal electrical
load and for normal engine air bleed and power extraction
associated with maximum cabin differential pressure as
defined in Section 21-30.31 of the Specification. Cabin
air conditioning management during performance
demonstration as described in Subparagraph 8.3 below may
be such as to optimize the A330-300 Aircraft performance
while meeting the minimum air conditioning requirements
defined above. Unless otherwise stated no air will be
bled from the engines for anti-icing.
7.6 The engines will be operated using not more than the
engine manufacturer's maximum recommended outputs for
take-off, maximum go-round, maximum continuous, maximum
climb and cruise for normal operation unless otherwise
stated.
7.7 Where applicable the Guarantees assume the use of an
approved fuel having a density of 6.7 lb/US gallon and a
lower heating value of 18,590 BTU/lb.
7.8 Speech interference level (SIL) is defined as the
arithmetic average of the sound pressure levels in the
1,000, 2,000, and 4,000 Hz octave bands A-weighted sound
level (dBA) is as defined in the American National
Standard Specification ANSI.4-1971
7.9 The sound levels guaranteed in Subparagraph 6.2:
i) will be measured at the positions defined in
Section 03-83.10 of the Specification
ii) refer to an A330-300 Aircraft with standard
acoustic insulation and an interior
completely furnished. The effect on noise of
Buyer furnished equipment other than
passenger seats will be the responsibility of
the Buyer.
7.10 For the purposes of the sound levels guaranteed in
Subparagraph 6.2.3 the APU and air conditioning system
will be operating.
Sound level measurements may be made at the prevailing
ambient temperature with the air conditioning packs
controlled to approximate air conditioning machinery
rotational speed appropriate to an ambient temperature of
25(degree)C.
8 GUARANTEE COMPLIANCE
8.1 Compliance with the Guarantees will be demonstrated using
operating procedures and limitations in accordance with
those defined by the certifying Airworthiness Authority
and by the Seller unless otherwise stated.
8.2 Compliance with the take-off, second segment, approach
climb, en-route one engine inoperative and landing
elements of the Guarantees will be demonstrated with
reference to the approved FAA Flight Manual.
8.3 Compliance with those parts of the Guarantees defined in
Paragraphs 2, 3 and 4 above not covered by the
requirements of the certifying Airworthiness Authority
will be demonstrated by calculation based on data
obtained during flight tests conducted on one (or more,
at the Seller's discretion) A330 aircraft of the same
aerodynamic configuration as the A330-300 Aircraft and
incorporated in the In-Flight Performance Program and
data bases ("the IFP") appropriate to the A330-300
Aircraft.
8.4 Compliance with the Manufacturer's Weight Empty guarantee
defined in Paragraph 5 will be demonstrated with
reference to a weight compliance report.
8.5 Compliance with the mission guarantees defined in
Paragraphs 3 and 4 will be demonstrated with reference to
the weight compliance report described in Subparagraph
8.4.
8.6 Compliance with the noise guarantees defined in
Subparagraph 6.2 will be demonstrated with reference to
noise surveys conducted on one (or more, at the Seller's
discretion) A330 aircraft of an acoustically similar
standard as the A330-300 Aircraft.
8.7 Data derived from tests and noise surveys will be
adjusted as required using conventional methods of
correction, interpolation or extrapolation in accordance
with established aeronautical practices to show
compliance with the Guarantees.
8.8 Compliance with the Guarantees is not contingent on
engine performance defined in the engine manufacturer's
specification.
8.9 The Seller undertakes to furnish the Buyer with a report
or reports demonstrating compliance with the Guarantees
at, or as soon as possible after, the delivery of each of
the A330-300 Aircraft.
9 ADJUSTMENT OF GUARANTEES
9.1 In the event of any change to any law, governmental
regulation or requirement or interpretation thereof
("rule change") by any governmental agency made
subsequent to the date of the Agreement and such rule
change affects the A330-300 Aircraft configuration or
performance or both required to obtain certification the
Guarantees will be appropriately modified to reflect the
effect of any such change.
9.2 The Guarantees apply to the A330-300 Aircraft as
described in the Preamble to this Letter Agreement and
may be adjusted in the event of :
a) Any further configuration change which is the
subject of a SCN
b) Variation in actual weights of items defined
in Section 13-10 of the Specification
c) Changes required to obtain certification
which cause changes to the performance or
weight of the A330-300 Aircraft
10 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of
any and all other performance and weight guarantees of
any nature which may be stated, referenced or
incorporated in the Specification or any other document.
11 UNDERTAKING; REMEDIES
***
If a deficiency is shown to exist the Seller may develop
and install a fix to correct such deficiency. The delay
period to correct such deficiency will not exceed *** of
the affected A330-300 Aircraft.
If a deficiency is not corrected as set forth in the
immediately preceding paragraph the Seller will, *** in
respect of such deficient A330-300 Aircraft pay to the
Buyer by way of liquidated damages on the anniversary
date of the delivery the following amounts:
i) *** per pound deficient resulting from the average of
the deviations from the guaranteed payloads defined in
Subparagraphs 3.1, 3.3, 3.5 and 3.7 and/or
ii) *** per pound deficient of guaranteed Manufacturer's
Weight Empty and/or
iii) *** per one percent deficiency resulting from the
average of the deviations from the guaranteed Specific
Range defined in Subparagraph 2.6 and the guaranteed
Mission Fuel Xxxxx defined in Subparagraphs 3.2, 3.4,
3.6 and 3.8 (parts of a percentage to be prorated).
Damages will be computed on the basis of the figures
defined in (i), (ii) and (iii) above and will be paid
***.
The Seller's maximum liability in respect of all
deficiencies in performance of any A330-300 Aircraft will
be limited to the payment of liquidated damages *** for
each A330-300 Aircraft whichever occurs first. Payment of
liquidated damages as aforesaid will be deemed to settle
any and all claims and remedies of the Buyer against the
Seller in respect of performance deficiencies.
UNQUOTE
In consideration of the assignment and subrogation by the
Seller under this Letter Agreement in favor of the Buyer
in respect of the Seller's rights against and obligations
to the Manufacturer under the provisions quoted above,
the Buyer hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions
and limitations therein contained. The Buyer and Seller
recognize and agree that, except as otherwise expressly
provided in Paragraph 8 of this Letter Agreement, all the
provisions of Clause 12 of the Agreement, including
without limitation the Exclusivity of Warranties and
General Limitations of Liability and Duplicate Remedies
therein contained, will apply to the foregoing
performance guarantees.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
APPENDIX 1 TO LETTER AGREEMENT NO. 8B
1 Manufacturer's Weight Empty and Operating Weight Empty
At the time of this Agreement the Buyer's Manufacturer's Weight
Empty and the Operating Weight Empty for the purposes of
Subparagraph 4.6 and Paragraph 5 of this Letter Agreement
are defined as follows:
Manufacturer's Weight Empty as defined in the Specification
Reference G.000.03000 Issue 6: 236,860 lb
Specification Change for the fitting of PW4168A engines: 0 lb
Specification Change for the increase in Design Weights: 3,750 lb
----------------
Buyer's Manufacturer's Weight Empty according to the Preamble of
this Letter Agreement and for the purposes of Subparagraph 4.6
and Paragraph 5 of this Letter Agreement: 240,610 lb
Specification changes as defined in Subparagraph 2.1 of
this Appendix A: 5,159 lb
Operators Items as defined in Subparagraph 2.2 of
this Appendix A: 31,463 lb
----------------
Operating Weight Empty of the A330-300 Aircraft for the purposes
of Subparagraphs 3.1 through 3.8, inclusive, of this Letter Agreement: 277,232 lb
*Note As of the date hereof the Operating Weight Empty has not been
completely defined. The payloads and fuel xxxxx guaranteed in
Paragraph 3 are based on the estimated Operating Weight Empty as
shown above. This Operating Weight Empty is based on a three class
layout (6F/36B/224Y) to drawing number AI.330-25.4014A.
2 Specification Changes and Operators Items
2.1 Weight of Specification Changes
As of the date of this draft the complete list of the Buyer's
Specification Changes is unknown. It is estimated that the weight
of such Specification Changes is :
Cabin changes: 1,550 lb
Allowance for Specification Changes 3,609 lb
----------------
Total 5,159 lb
3.1 Weights of Operators Items
Oil for engines and APU: 278 lb
Unusable fuel: 732 lb
Water for galleys and toilets: 1,543 lb
Waste tank pre-charge: 79 lb
Aircraft documents and tool kits: 101 lb
Passenger seats and life jackets: 12,359 xx
Xxxxxx structure and fixed equipment: 3,743 lb
Catering and service equipment: 6,993 lb
Emergency equipment: 1,554 lb
Containers 1,650 lb
Crew and bags: 2,429 lb
---------------
Total Operators Items 31,463 lb
LETTER AGREEMENT NO. 8C
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: A340-200 PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
8C (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with
the Manufacturer, has negotiated and obtained the following performance and
weight guarantees (the "Guarantees") from the Manufacturer, in its capacity
as "Seller" with respect to the A340-200 Aircraft, subject to the terms,
conditions, limitations and restrictions all as hereinafter set out. The
Seller hereby assigns to the Buyer and the Buyer hereby accepts, as to each
A340-200 Aircraft delivered to the Buyer under the Agreement, all of the
rights and obligations of the Seller with respect to such A340-200 Aircraft
in its capacity as "Buyer" as aforesaid under the said Guarantees and the
Seller subrogates the Buyer into all such rights and obligations in respect
of such A340-200 Aircraft. The Seller hereby warrants to the Buyer that it
has all the requisite authority to make the foregoing assignment and effect
the foregoing subrogation to and in favor of the Buyer and that it will not
enter into any amendment of the provisions so assigned or subrogated
without the prior written consent of the Buyer.
Capitalized terms used in the following quoted provisions and not
otherwise defined herein will have the meanings assigned thereto in the
Agreement except that the term "Seller" refers to the Manufacturer and the
term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable to
the A340-200 Aircraft as described in the Technical Specification
F.000.02000 Issue 6 dated 15th January 1997 (the "Specification")
without taking into account any further changes thereto as
provided in the Agreement.
Notwithstanding the foregoing the Seller reserves the right to
increase the Design Weights above the weights shown in the
Specification in order to satisfy the Guarantees.
1 MISSION GUARANTEE
1.1 The A340-200 Aircraft will be capable of carrying a fixed zero
fuel weight of 350,000 lb over a guaranteed still air stage
distance of not less than *** nautical miles when operated under
the conditions defined below:
1.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
1.1.2 An allowance of 2,570 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed at a temperature of 77(degree)F.
1.1.3 Climb from 1,500 ft pressure altitude up to cruise altitude using
maximum climb thrust and cruise at a fixed Mach number of 0.82 at
pressure altitudes of 35,000 ft and 39,000 ft and descent to 1,500
ft pressure altitude are conducted in ISA+10(degree)C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS.
1.1.4 An allowance of 490 lb of fuel is included for approach and
landing at the destination airport.
1.1.5 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 1.1.3 above.
1.1.6 At the end of approach and landing 28,330 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) En-route reserves - 10% of flight time
2) Missed approach
3) Diversion in ISA+10(degree)C conditions over a still
air distance of 150 nautical miles starting and
ending at 1,500 ft pressure altitude
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10(degree)C conditions.
2 MANUFACTURER'S WEIGHT EMPTY
2.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty of ***
2.2 For the purposes of this Paragraph 2 the Buyer's Manufacturer's
Weight Empty is the Manufacturer's Weight Empty defined in Section
13-10.00.00 of the Specification and is subject to adjustment as
defined in Subparagraph 6.2.
3 NOISE
3.1 External
3.1.1 The Seller guarantees that the A340-200 Aircraft will be certified
in accordance with FAR Part 36 Noise Standards, issue 1978,
including Amendment 36-15 Stage 3. The applicable noise limits are
as defined in paragraphs 36.201 and c36.5 (3).
3.2 Internal
3.2.1 Cockpit noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.82 in
still air under ISA conditions, the guaranteed A-Weighted Sound
Pressure Level (SPL) will not exceed *** and the Speech
Interference Level (SIL) will not exceed ***.
3.2.2 Cabin noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.82 in
still air under ISA conditions, the guaranteed A-Weighted Sound
Pressure Level (SPL) will not exceed *** and the Speech
Interference Level (SIL) will not exceed ***.
3.2.3 On the ground and under the conditions defined in Subparagraph 4.9
below the noise levels in the passenger compartment with passenger
doors open or closed the A-weighted Sound Pressure Level (SPL)
will not exceed *** and the Speech Interference Level (SIL) will
not exceed ***.
4 GUARANTEE CONDITIONS
4.1 The performance and noise certification requirements for the
A340-200 Aircraft, except where otherwise noted, will be as stated
in Section 02 of the Specification.
4.2 For the determination of FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitations,
no obstacles, zero wind, atmosphere according to ISA, except as
otherwise noted and the use of speedbrakes, flaps, landing gear
and engines in the conditions liable to provide the best results
will be assumed.
4.2.1 When establishing take-off and second segment performance no air
will be bled from the engines for cabin air conditioning or
anti-icing.
4.3 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with
the maximum cabin altitude as specified in Section 21-30.32 of the
Specification and an average ventilation rate not less than the
amount defined in the Specification but no air will be bled from
the engines for anti-icing.
4.4 Climb, cruise and descent performance associated with the
Guarantees will include allowances for normal electrical load
and for normal engine air bleed and power extraction associated
with maximum cabin differential pressure as defined in Section
21-30.31 of the Specification. Cabin air conditioning management
during performance demonstration as described in Subparagraph
5.3 below may be such as to optimize the A340-200 Aircraft
performance while meeting the minimum air conditioning
requirements defined above. Unless otherwise stated no air will
be bled from the engines for anti-icing.
4.5 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for normal
operation unless otherwise stated.
4.6 Where applicable the Guarantees assume the use of an approved fuel
having a density of 6.7 lb/US gallon and a lower heating value of
18,590 BTU/lb.
4.7 Speech interference level (SIL) is defined as the arithmetic
average of the sound pressure levels in the 1,000, 2,000, and
4,000 Hz octave bands A-weighted sound level (dBA) is as defined
in the American National Standard Specification ANSI.4-1971.
4.8 The sound levels guaranteed in Subparagraph 3.2:
i) will be measured at the positions defined in Section
03-83.10 of the Specification
ii) refer to an A340-200 Aircraft with standard acoustic
insulation and an interior completely furnished. The
effect on noise of Buyer furnished equipment other than
passenger seats will be the responsibility of the Buyer.
4.9 For the purposes of the sound levels guaranteed in Subparagraph
3.2.3 the APU and air conditioning system will be operating. Sound
level measurements may be made at the prevailing ambient
temperature with the air conditioning packs controlled to
approximate air conditioning machinery rotational speed
appropriate to an ambient temperature of 25(degree)C.
5 GUARANTEE COMPLIANCE
5.1 Compliance with the Guarantees will be demonstrated using
operating procedures and limitations in accordance with those
defined by the certifying Airworthiness Authority and by the
Seller unless otherwise stated.
5.2 Compliance with the take-off, second segment, en-route one engine
inoperative and landing elements of the Guarantees will be
demonstrated with reference to the approved Flight Manual.
5.3 Compliance with those parts of the Guarantees defined in
Paragraph 1 above not covered by the requirements of the
certifying Airworthiness Authority will be demonstrated by
calculation based on data obtained during flight tests conducted
on one (or more, at the Seller's discretion) A340 aircraft of
the same aerodynamic configuration as the A340-200 Aircraft and
incorporated in the In-Flight Performance Program and data bases
("the IFP") appropriate to the A340-200 Aircraft.
5.4 Compliance with the Manufacturer's Weight Empty guarantee defined
in Paragraph 2 will be demonstrated with reference to a weight
compliance report.
5.5 Compliance with the noise guarantees defined in Subparagraph 3.2
will be demonstrated with reference to noise surveys conducted on
one (or more, at the Seller's discretion) A340 aircraft of an
acoustically similar standard as the A340-200 Aircraft.
5.6 Data derived from tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation
or extrapolation in accordance with established aeronautical
practices to show compliance with the Guarantees.
5.7 Compliance with the Guarantees is not contingent on engine
performance defined in the engine manufacturer's specification.
5.8 The Seller undertakes to furnish the Buyer with a report or
reports demonstrating compliance with the Guarantees at, or as
soon as possible after, the delivery of each of the A340-200
Aircraft.
6 ADJUSTMENT OF GUARANTEES
6.1 In the event of any change to any law, governmental
regulation or requirement or interpretation thereof ("rule
change") by any governmental agency made subsequent to the date
of the Agreement and such rule change affects the A340-200
Aircraft configuration or performance or both required to obtain
certification the Guarantees will be appropriately modified to
reflect the effect of any such change.
6.2 The Guarantees apply to the A340-200 Aircraft as described in the
Preamble to this Letter Agreement and may be adjusted in the event
of :
a) Any further configuration change which is the subject
of a SCN
b) Variation in actual weights of items defined in Section
13-10 of the Specification
c) Changes required to obtain certification which cause
changes to the performance or weight of the A340-200
Aircraft
7. EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and
all other performance and weight guarantees of any nature which
may be stated, referenced or incorporated in the Specification or
any other document.
8. UNDERTAKING; REMEDIES
***
If a deficiency is shown to exist the Seller may develop and
install a fix to correct such deficiency. The delay period to
correct such deficiency will not exceed *** of the affected
A340-200 Aircraft.
If a deficiency is not corrected as set forth in the immediately
preceding paragraph the Seller will, *** in respect of such
deficient A340-200 Aircraft pay to the Buyer by way of liquidated
damages on the anniversary date of the delivery the following
amounts:
i) *** per pound deficient of guaranteed Manufacturer's
Weight Empty and/or
ii) *** per one percent deficiency resulting from the
deviation from the guaranteed Range defined in
Subparagraph 1.1 (parts of a percentage to be prorated).
Damages will be computed on the basis of the figures defined in
(i) and (ii) above and will be paid ***.
The Seller's maximum liability in respect of all deficiencies in
performance of any A340-200 Aircraft will be limited to the
payment of liquidated damages *** for each A340-200 Aircraft
whichever occurs first. Payment of liquidated damages as aforesaid
will be deemed to settle any and all claims and remedies of the
Buyer against the Seller in respect of performance deficiencies.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer and
Seller recognize and agree that, except as otherwise expressly
provided in Paragraph 8 of this Letter Agreement, all the
provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will apply
to the foregoing performance guarantees.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 8D
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: A340-300 PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
8D (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with
the Manufacturer, has negotiated and obtained the following performance and
weight guarantees (the "Guarantees") from the Manufacturer, in its capacity
as "Seller" with respect to the A340-300 Aircraft, subject to the terms,
conditions, limitations and restrictions all as hereinafter set out. The
Seller hereby assigns to the Buyer and the Buyer hereby accepts, as to each
A340-300 Aircraft delivered to the Buyer under the Agreement, all of the
rights and obligations of the Seller with respect to such A340-300 Aircraft
in its capacity as "Buyer" as aforesaid under the said Guarantees and the
Seller subrogates the Buyer into all such rights and obligations in respect
of such A340-300 Aircraft. The Seller hereby warrants to the Buyer that it
has all the requisite authority to make the foregoing assignment and effect
the foregoing subrogation to and in favor of the Buyer and that it will not
enter into any amendment of the provisions so assigned or subrogated
without the prior written consent of the Buyer.
Capitalized terms used in the following quoted provisions and not
otherwise defined herein will have the meanings assigned thereto in the
Agreement except that the term "Seller" refers to the Manufacturer and the
term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable to
the A340-300 Aircraft as described in the Technical Specification
F.000.03000 Issue 6 dated 15th January 1997 ("the Specification")
as amended by a Specification Change Notice for the increase in
the Design Maximum Take-Off Weight to 606,270 lb (275,000 kg)
without taking into account any further changes thereto as
provided in the Agreement.
Notwithstanding the foregoing the Seller reserves the right to
increase the Design Weights above the weights shown in the
Specification in order to satisfy the Guarantees.
1 MISSION GUARANTEE
1.1 The A340-300 Aircraft will be capable of carrying a fixed zero
fuel weight of 370,000 lb over a guaranteed still air stage
distance of not less than *** nautical miles when operated under
the conditions defined below:
1.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without restriction. The destination
airport conditions are such as to allow the required landing
weight to be used without restriction.
1.1.2 An allowance of 2,570 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed at a temperature of 77(degree)F.
1.1.3 Climb from 1,500 ft pressure altitude up to cruise altitude using
maximum climb thrust and cruise at a fixed Mach number of 0.82 at
pressure altitudes of 35,000 ft and 39,000 ft and descent to 1,500
ft pressure altitude are conducted in ISA+10(degree)C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS.
1.1.4 An allowance of 490 lb of fuel is included for approach and
landing at the destination airport.
1.1.5 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 1.1.3 above.
1.1.6 At the end of approach and landing 27,810 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) En-route reserves - 10% of flight time
2) Missed approach
3) Diversion in ISA+10(degree)C conditions over a
still air distance of 150 nautical miles starting
and ending at 1,500 ft pressure altitude
4) Holding for 30 minutes at 1,500 ft pressure altitude
in ISA+10(degree)C conditions.
2 MANUFACTURER'S WEIGHT EMPTY
2.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty of ***
2.2 For the purposes of this Paragraph 2 the Buyer's Manufacturer's
Weight Empty is the Manufacturer's Weight Empty defined in Section
13-10.00.00 of the Specification and is subject to adjustment as
defined in Subparagraph 6.2.
3 NOISE
3.1 External
3.1.1 The Seller guarantees that the A340-300 Aircraft will be certified
in accordance with FAR Part 36 Noise Standards, issue 1978,
including Amendment 36-15 Stage 3. The applicable noise limits are
as defined in paragraphs 36.201 and c36.5 (3).
3.2 Internal
3.2.1 Cockpit noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.82 in
still air under ISA conditions, the guaranteed A-Weighted Sound
Pressure Level (SPL) will not exceed *** and the Speech
Interference Level (SIL) will not exceed ***.
3.2.2 Cabin noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.82 in
still air under ISA conditions, the guaranteed A-Weighted Sound
Pressure Level (SPL) will not exceed *** and the Speech
Interference Level (SIL) will not exceed ***.
3.2.3 On the ground and under the conditions defined in Subparagraph 4.9
below the noise levels in the passenger compartment with passenger
doors open or closed the A-weighted Sound Pressure Level (SPL)
will not exceed *** and the Speech Interference Level (SIL) will
not exceed ***.
4 GUARANTEE CONDITIONS
4.1 The performance and noise certification requirements for the
A340-300 Aircraft, except where otherwise noted, will be as stated
in Section 02 of the Specification.
4.2 For the determination of FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitations,
no obstacles, zero wind, atmosphere according to ISA, except as
otherwise noted and the use of speedbrakes, flaps, landing gear
and engines in the conditions liable to provide the best results
will be assumed.
4.2.1 When establishing take-off and second segment performance no air
will be bled from the engines for cabin air conditioning or
anti-icing.
4.3 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with
the maximum cabin altitude as specified in Section 21-30.32 of the
Specification and an average ventilation rate not less than the
amount defined in the Specification but no air will be bled from
the engines for anti-icing.
4.4 Climb, cruise and descent performance associated with the
Guarantees will include allowances for normal electrical load and
for normal engine air bleed and power extraction associated with
maximum cabin differential pressure as defined in Section 21-30.31
of the Specification. Cabin air conditioning management during
performance demonstration as described in Subparagraph 5.3 below
may be such as to optimize the A340-300 Aircraft performance while
meeting the minimum air conditioning requirements defined above.
Unless otherwise stated no air will be bled from the engines for
anti-icing.
4.5 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for normal
operation unless otherwise stated.
4.6 Where applicable the Guarantees assume the use of an approved fuel
having a density of 6.7 lb/US gallon and a lower heating value of
18,590 BTU/lb.
4.7 Speech interference level (SIL) is defined as the arithmetic
average of the sound pressure levels in the 1,000, 2,000, and
4,000 Hz octave bands A-weighted sound level (dBA) is as defined
in the American National Standard Specification ANSI.4-1971.
4.8 The sound levels guaranteed in Subparagraph 3.2:
i) will be measured at the positions defined in Section
03-83.10 of the Specification
ii) refer to an A340-300 Aircraft with standard acoustic
insulation and an interior completely furnished. The
effect on noise of Buyer furnished equipment other than
passenger seats will be the responsibility of the
Buyer.
4.9 For the purposes of the sound levels guaranteed in Subparagraph
3.2.3 the APU and air conditioning system will be operating. Sound
level measurements may be made at the prevailing ambient
temperature with the air conditioning packs controlled to
approximate air conditioning machinery rotational speed
appropriate to an ambient temperature of 25(degree)C.
5 GUARANTEE COMPLIANCE
5.1 Compliance with the Guarantees will be demonstrated using
operating procedures and limitations in accordance with those
defined by the certifying Airworthiness Authority and by the
Seller unless otherwise stated.
5.2 Compliance with the take-off, second segment, en-route one engine
inoperative and landing elements of the Guarantees will be
demonstrated with reference to the approved Flight Manual.
5.3 Compliance with those parts of the Guarantees defined in Paragraph
1 above not covered by the requirements of the certifying
Airworthiness Authority will be demonstrated by calculation based
on data obtained during flight tests conducted on one (or more, at
the Seller's discretion) A340 aircraft of the same aerodynamic
configuration as the A340-300 Aircraft and incorporated in the
In-Flight Performance Program and data bases ("the IFP")
appropriate to the A340-300 Aircraft.
5.4 Compliance with the Manufacturer's Weight Empty guarantee defined
in Paragraph 2 will be demonstrated with reference to a weight
compliance report.
5.5 Compliance with the noise guarantees defined in Subparagraph 3.2
will be demonstrated with reference to noise surveys conducted on
one (or more, at the Seller's discretion) A340 aircraft of an
acoustically similar standard as the A340-300 Aircraft.
5.6 Data derived from tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation
or extrapolation in accordance with established aeronautical
practices to show compliance with the Guarantees.
5.7 Compliance with the Guarantees is not contingent on engine
performance defined in the engine manufacturer's specification.
5.8 The Seller undertakes to furnish the Buyer with a report or
reports demonstrating compliance with the Guarantees at, or as
soon as possible after, the delivery of each of the A340-300
Aircraft.
6 ADJUSTMENT OF GUARANTEES
6.1 In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("rule change") by any
governmental agency made subsequent to the date of the Agreement
and such rule change affects the A340-300 Aircraft configuration
or performance or both required to obtain certification the
Guarantees will be appropriately modified to reflect the effect of
any such change.
6.2 The Guarantees apply to the A340-300 Aircraft as described in the
Preamble to this Letter Agreement and may be adjusted in the event
of:
a) Any further configuration change which is the subject
of a SCN
b) Variation in actual weights of items defined in
Section 13-10 of the Specification
c) Changes required to obtain certification which cause
changes to the performance or weight of the A340-300
Aircraft
7 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and
all other performance and weight guarantees of any nature which
may be stated, referenced or incorporated in the Specification or
any other document.
8 UNDERTAKING; REMEDIES
***
If a deficiency is shown to exist the Seller may develop and
install a fix to correct such deficiency. The delay period to
correct such deficiency will not exceed *** of the affected
A340-300 Aircraft.
If a deficiency is not corrected as set forth in the immediately
preceding paragraph the Seller will, *** in respect of such
deficient A340-300 Aircraft pay to the Buyer by way of liquidated
damages on the anniversary date of the delivery the following
amounts:
i) *** per pound deficient of guaranteed Manufacturer's
Weight Empty and/or
ii) *** per one percent deficiency resulting from the
deviation from the guaranteed Range defined in
Subparagraph 1.1 (parts of a percentage to be prorated).
Damages will be computed on the basis of the figures defined in
(i) and (ii) above and will be paid ***.
The Seller's maximum liability in respect of all deficiencies in
performance of any A330-200 Aircraft will be limited to the
payment of liquidated damages *** for each A330-200 Aircraft
whichever occurs first. Payment of liquidated damages as aforesaid
will be deemed to settle any and all claims and remedies of the
Buyer against the Seller in respect of performance deficiencies.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer and
Seller recognize and agree that, except as otherwise expressly
provided in Paragraph 8 of this Letter Agreement, all the
provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will apply
to the foregoing performance guarantees.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 9
As of November 24, 1998
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 an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
9 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, under its arrangement with the Manufacturer, has
negotiated and obtained the following *** from the Manufacturer with
respect to the Aircraft, subject to the terms, conditions, limitations and
restrictions all as hereinafter set out. The Seller hereby warrants the
performance by the Manufacturer of the Manufacturer's obligations and
hereby assigns to the Buyer, and the Buyer hereby accepts, all of the
rights and obligations of the Seller as aforesaid under the said *** and
the Seller subrogates the Buyer into all such rights and obligations in
respect of the Aircraft. The Seller hereby warrants to the Buyer that the
Seller has all requisite authority to make the foregoing assignment and
effect the foregoing subrogation to and in favor of the Buyer and that the
Seller will not enter into any amendment of the provisions so assigned or
subrogated without the prior written consent of the Buyer. Capitalized
terms used in the following quoted provisions and not otherwise defined
therein will have the meanings assigned thereto in the Agreement, except
that the term "Seller" refers to the Manufacturer and the term "Buyer"
refers to the Seller.
QUOTE
1. ***
1.1 ***
1.2 ***
1.3 ***
2. ***
3. ***
4. ***
4.1 ***
4.2 ***
4.3 ***
5 ***
5.1 ***
5.2 ***
6. ***
7. ***
7.1 ***
7.2 ***
7.3 ***
8. ***
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of the
Seller's rights against and obligations to the Manufacturer under
the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer and
the Seller recognize and agree that the Exclusivity of Warranties
and General Limitations of Liability provisions contained in Clause
12 of the Agreement will apply to the foregoing ***
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 will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 0000
XXXXXXXX 1
***
APPENDIX 2
***
LETTER AGREEMENT NO. 10
As of November 24, 1998
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 an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
10 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, under its arrangement with the Manufacturer, has
negotiated and obtained the following *** from the Manufacturer with
respect to the Aircraft, subject to the terms, conditions, limitations and
restrictions all as hereinafter set out. The Seller hereby warrants the
performance by the Manufacturer of the Manufacturer's obligations and
hereby assigns to the Buyer, and the Buyer hereby accepts, all of the
rights and obligations of the Seller as aforesaid under the said *** and
the Seller subrogates the Buyer into all such rights and obligations in
respect of the Aircraft. The Seller hereby warrants to the Buyer that the
Seller has all requisite authority to make the foregoing assignment and
effect the foregoing subrogation to and in favor of the Buyer and that the
Seller will not enter into any amendment of the provisions so assigned or
subrogated without the prior written consent of the Buyer. Capitalized
terms used in the following quoted provisions and not otherwise defined
therein will have the meanings assigned thereto in the Agreement, except
that the term "Seller" refers to the Manufacturer and the term "Buyer"
refers to the Seller.
QUOTE
1. ***
1.1 ***
1.2 ***
1.2.1 ***
1.2.2 ***
1.3 ***
1.4 ***
2. ***
2.1 ***
2.2 ***
2.3 ***
2.4 ***
2.5 ***
2.6 ***
2.6.1 ***
2.6.2 ***
2.7 ***
3. ***
4. ***
4.1 ***
4.1.1 ***
4.1.2 ***
4.2 ***
5. ***
5.1 ***
5.2 ***
6. ***
7. ***
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer and
the Seller recognize and agree that the Exclusivity of Warranties
and General Limitations of Liability provisions contained in
Clause 12 of the Agreement will apply to the foregoing ***.
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 will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 0000
XXXXXXXX 1
***
APPENDIX 2
***
LETTER AGREEMENT NO. 11
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: PREDELIVERY PAYMENTS
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
11 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
1. PREDELIVERY PAYMENT REFERENCE PRICE CALCULATION METHOD
Notwithstanding the provisions of Subclause 6.2.3 of the
Agreement, the Predelivery Payment Reference Price for the
Aircraft is ***.
2. PREDELIVERY PAYMENT REFERENCE PRICE VALUES
The Predelivery Payment Reference Price Values to be used by the
Seller are listed in Table 1, attached to this Letter Agreement,
for the Aircraft for each year of delivery through ***. Such values
are based on the amounts of SCNs specified in Subclauses 4.1.1.1
(ii), 4.1.1.2 (ii), 4.1.1.3 (ii) and 4.1.1.4 (ii) of the Agreement,
and will be readjusted in the event that any amount entering into
the calculation of the Predelivery Payment Reference Price is
modified.
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 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
Table 1
Predelivery Payment Reference Prices for All A330-200 Aircraft
***
Predelivery Payment Reference Prices for All A330-300 Aircraft
***
Predelivery Payment Reference Prices for All A340-200 Aircraft
***
Predelivery Payment Reference Prices for All A340-300 Aircraft
***
LETTER AGREEMENT NO. 12
As of November 24, 1998
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 an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
12 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with
the Manufacturer, has negotiated and obtained the following *** from the
Manufacturer, in its capacity as "Seller" with respect to the Aircraft,
subject to the terms, conditions, limitations and restrictions all as
hereinafter set out. The Seller hereby guarantees to the Buyer the
performance by the Manufacturer of the Manufacturer's obligations and
assigns to the Buyer and the Buyer hereby accepts, as to each Aircraft
delivered to the Buyer under the Agreement, all of the rights and
obligations of the Seller with respect to such Aircraft in the Seller's
capacity as "Buyer" as aforesaid under the said *** and the Seller
subrogates the Buyer into all such rights and obligations in respect of
such Aircraft. The Seller hereby warrants to the Buyer that it has all the
requisite authority to make the foregoing assignment and effect the
foregoing subrogation to and in favor of the Buyer and that it will not
enter into any amendment of the provisions so assigned or subrogated
without the prior written consent of the Buyer.
Capitalized terms used in the following quoted provisions and not
otherwise defined herein will have the meanings assigned thereto in the
Agreement except that the term "Seller" refers to the Manufacturer and the
term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
1 ***
1.1 ***
1.2 ***
1.3 ***
1.4 ***
2 ***
2.1 ***
2.2 ***
2.3 ***
2.4 ***
2.5 ***
3 ***
3.1 ***
3.1.1 ***
3.2 ***
4 ***
4.1 ***
4.2 ***
4.3 ***
4.4 ***
4.5 ***
4.6.1 ***
4.6.2 ***
4.6.3 ***
5 ***
5.1 ***
5.2 ***
5.2.1 ***
5.3 ***
5.3.1 ***
5.3.2 ***
6 ***
6.1 ***
6.2 ***
6.3 ***
6.4 ***
7 ***
7.1 ***
7.2 ***
8 ***
8.1 ***
8.2 ***
8.3 ***
8.4 ***
9 ***
9.1 ***
9.2 ***
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer and
Seller recognize and agree that, except as otherwise expressly
provided in Paragraph 7 of this Letter Agreement, all the
provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will apply
to the foregoing ***.
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 will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
APPENDIX A
***
LETTER AGREEMENT NO. 13
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: TECHNICAL DISPATCH RELIABILITY GUARANTEE
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A330/A340 Purchase Agreement dated
as of even date herewith (the "Agreement"), which covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
13 (the "Letter Agreement") certain additional terms and conditions
regarding the 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 Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, under its arrangement with the Manufacturer, has
negotiated and obtained the following Technical Dispatch Reliability
Guarantee from the Manufacturer with respect to the Aircraft, subject to
the terms, conditions, limitations and restrictions all as hereinafter set
out. The Seller hereby guarantees to the Buyer the performance by the
Manufacturer of its obligations under this Technical Dispatch Reliability
Guarantee and hereby assigns to the Buyer, and the Buyer hereby accepts,
all of the rights and obligations of the Seller as aforesaid under the said
Technical Dispatch Reliability Guarantee, and the Seller subrogates the
Buyer into all such rights and obligations in respect of the Aircraft. The
Seller hereby warrants to the Buyer that it has all requisite authority to
make the foregoing assignment and effect the foregoing subrogation to and
in favor of the Buyer and that it will not enter into any amendment of the
provisions so assigned or subrogated without the prior written consent of
the Buyer. Capitalized terms used in the following quoted provisions and
not otherwise defined therein will have the meanings assigned thereto in
the Agreement, except that the term "Seller" refers to the Manufacturer and
the term "Buyer" refers to the Seller.
QUOTE
1. SCOPE, COMMENCEMENT, DURATION
This dispatch reliability guarantee (the "Guarantee") extends to
the Aircraft fleet, will commence with delivery of the first
Aircraft and will remain in force for a period of *** years (the
"Term"), ***.
2. DEFINITION
2.1 Revenue Flight
A "Revenue Flight" is a flight as stipulated in the Buyer's time
table, and any scheduled charter flight of the Aircraft.
2.2 Aircraft Inherent Malfunction
An "Aircraft Inherent Malfunction" is a condition whereby
maintenance action is necessary to reestablish serviceability of
the Aircraft.
2.3 Dispatched
An Aircraft will be deemed to have been "Dispatched" when it
leaves the gate for a Revenue Flight.
2.4 Chargeable Delay
A "Chargeable Delay" will be deemed to have occurred when, by more
than fifteen (15) minutes and for reasons other than those defined
under "Excluded Delay," a primary Aircraft Inherent Malfunction
causes a Revenue Flight to depart later than the scheduled
departure time.
2.5 Excluded Delay
Any delay which is not a Chargeable Delay is an "Excluded Delay."
Excluded Delays are specifically excluded from this Guarantee,
even if consequently the Aircraft is subject to a delay. These
Excluded Delays include delays in scheduled departure due to:
- SERVICING - NO CORRECTIVE MAINTENANCE PERFORMED
Struts
Oil
Hydraulic fluid
Lubrication
All servicing activities that do not require the mechanic
to physically adjust or replace or defer structural
repair and replace hardware/software
Fueling related
Deicing
Water and waste
Sanitizing / flushing
Moisture condensation
Printer paper replacement
Routine cleaning
Tire pressure servicing
- PRECAUTIONARY MAINTENANCE - NO CORRECTIVE MAINTENANCE
PERFORMED
Hydraulic leaks - within limits
Fuel leak - within limits
Manual closing or cycling passenger/crew/cargo door
Decals/paint/appearance items
Passenger amenity lamps
Tires - worn past limits
Brakes - worn past limits
Resetting circuit breakers - no corrective maintenance
performed according to FAA-approved FCOM
- SCHEDULED MAINTENANCE ACTIVITIES
COMPLETION OF SCHEDULED / PLANNED WORK CONTENT OF SCHEDULED:
Maintenance checks
Maintenance set-ups
- PARTS DELAYS AND CANCELLATIONS
- EXTERNAL FORCE DAMAGE : AIRCRAFT DAMAGE/LIGHTNING STRIKES,
ETC.
- KNOWN PERSONNEL ERROR
- SECONDARY DELAY / CANCELLATION : A previous delay(s) or
cancellation(s) of subsequent scheduled flights on the
same day caused by the same problem that caused the
primary delay(s) or cancellation(s).
- Delays caused by systems or components being designated
as "Go if" in the Minimum-Equipment List (XXX) as
approved by the Buyer's airworthiness authorities for the
Buyer's operation of the Aircraft.
- Delays attributable to the Propulsion Systems.
2.6 Cancellation
A "Cancellation" occurs when a Revenue Flight does not take place.
The cancellation of any or all of the flight legs of a multi-leg
flight constitutes only one (1) Cancellation. One (1) Cancellation
is counted as one (1) event.
2.7 Achieved Dispatch Reliability
"Achieved Dispatch Reliability" is the actual Dispatch Reliability
obtained by the Aircraft fleet in regular revenue service and
adjusted to the clauses of this Guarantee.
Achieved Dispatch Reliability, expressed as a percent, will be
computed every three months ("the Computation Period") and will be
compared to the Guaranteed Dispatch Reliability level (as defined
in Paragraph 3) at the end of each Computation Period.
Total number of Revenue Flights
without Chargeable Delays or
Achieved Cancellations during the
Dispatch = Computation Period X 100
Reliability -------------------------------
Total number of Scheduled Revenue
Flights during the Computation Period
3. GUARANTEE
The Seller guarantees the "Guaranteed Dispatch Reliability," set
forth below in Subparagraph 3.1 and 3.2.
3.1 First *** of Guarantee
The Seller guarantees that, from the first three-month Computation
Period following delivery of the first Aircraft and for Aircraft
in commercial service, an Aircraft available for dispatch will, on
average, have a *** percent probability of being dispatched
without a Chargeable Delay. This probability will be maintained
until the end of the *** year of operation of the Aircraft fleet
following delivery of the first Aircraft.
3.2 *** Years of Guarantee
The Seller guarantees that, from the first three-month Computation
Period after the beginning of the *** year of operation of the
Aircraft fleet in commercial service until the end of the ***
year, an Aircraft available for dispatch will, on average, have a
*** percent probability of being Dispatched without a Chargeable
Delay.
3.3 Remaining Years of Guarantee
*** from the first three-month Computation Period after the
beginning of the *** year of operation of the Aircraft fleet in
commercial service, until the end of the Term, the Seller will
guarantee that an Aircraft available for dispatch will, on
average, have a *** probability of being Dispatched without a
Chargeable Delay. ***
4. BUYER'S AND SELLER'S OBLIGATION
4.1 Buyer's and Seller's Obligations
The Buyer's and Seller's specialists will mutually agree on the
details of a Chargeable Delay reporting procedure not later than
three (3) months before delivery of the first Aircraft.
4.2 Buyer's Obligations
a) The Buyer will regularly submit Chargeable Delay data on
a monthly basis not later than twenty (20) days after the
end of the reporting month. Such data must contain
detailed information on delays and Cancellations to allow
the Seller to assess the nature of system or component
malfunctions.
b) The Buyer will notify the Seller at any time that the
Achieved Dispatch Reliability is below the Guaranteed
Dispatch Reliability Level. After such notice, the Seller
will promptly take corrective actions. Upon request, all
reasonably necessary additional detailed operational and
engineering information will be provided by the Buyer in
order to allow the Seller to determine the necessary
action.
c) The Buyer will incorporate in and apply to the Aircraft
the procedures and modifications recommended by the
Seller to the extent necessary in order to improve the
Achieved Dispatch Reliability. Said modifications will be
incorporated and such procedures will be applied as soon
as is reasonably possible, consistent with the Buyer's
maintenance program, following receipt of instructions
and parts (if applicable) by the Buyer, provided that:
i) the effect of such a procedure or modification is
substantiated to the Buyer's satisfaction,
ii) application of such a procedure or modification is
economical and practical as determined by the
Buyer's customary analysis practice, and
iii) ***
In the event of a disagreement between the Seller and the
Buyer as to the effectiveness of procedures or
modifications proposed by the Seller to increase the
achieved level, the Buyer will demonstrate to the Seller
that pursuant to its analysis, such a modification or
procedure is not effective.
Notwithstanding the Buyer's obligations above, the Buyer
may, at its option, decline to install such modification
or decline to follow such revised procedures as are
referred to above. If the Buyer so declines, the Seller
may adjust the Guaranteed Dispatch Reliability Level
downwards by an amount consistent with the improvement in
the Achieved Dispatch Reliability Level, based on
reasonable substantiation to the Buyer and on other
operators' experience, if any, that of the reliability
benefits of such modification or such revised procedures
are expected to cause.
d) Furthermore, the Buyer agrees to set its Aircraft fleet
technical dispatch reliability goals as shown in the
Buyer's regular reliability report (or equivalent) at a
level equal to or greater than the Guaranteed Dispatch
Reliability Level, so that both the Buyer's and Seller's
technical staff can aggressively pursue attainment of the
Guaranteed Dispatch Reliability Level.
4.3 Seller's Obligations
During the Term, the Seller will provide technical and operational
analyses of delays and cancellations and will develop corrections
intended to reduce delays and, in the event that the Achieved
Dispatch Reliability is below the Guaranteed Dispatch Reliability
Level the Seller will, not later than six (6) months where
practicable after notification by the Buyer and at no charge to
the Buyer :
a) provide modified Manufacturer's items, either hardware of
software, to improve Achieved Dispatch Reliability,
b) make recommendations concerning the Aircraft operation and
maintenance programs, publications, and policies to improve
Achieved Dispatch Reliability,
c) assist the Buyer to cause Vendors action to improve the
Achieved Dispatch Reliability.
5. ADJUSTMENT
Any design, certification, regulatory, organizational structure or
Aircraft operation changes outside the Seller's control that may
have an effect upon the operation and dispatch characteristics of
the Aircraft will be cause for reevaluation or adjustment of this
Guaranteed Dispatch Reliability Level by mutual agreement between
the Buyer and the Seller.
6. ACHIEVED DISPATCH RELIABILITY REVIEW MEETINGS
An Achieved Dispatch Reliability review meeting between the
Seller's and the Buyer's representatives will be scheduled at the
end of each six (6) month period of Aircraft operation, or at some
other period to be mutually agreed. Representatives of the Buyer
and the Seller will participate in the meeting and will:
a) review current Achieved Dispatch Reliability,
b) eliminate unsupported or non-Aircraft-inherent delay
claims from delay records to compute Achieved Dispatch
Reliability,
c) consider corrective action, if required,
d) review the Buyer's incorporation of modifications as stated
in Subparagraph 4.2 of this Letter Agreement and
requirements, if any, for reduction of the Guaranteed
Dispatch Reliability Level,
e) review possible design, certification, regulatory,
organizational structure or Aircraft operation changes
and requirements, if any, necessitating adjustment of the
Guaranteed Dispatch Reliability Level.
7. LIABILITY LIMITATION
The Seller's liability for failure to meet the Dispatch
Reliability Guarantee values will be governed solely by the terms
of this Dispatch Reliability Guarantee.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer and
Seller recognize and agree that, except as otherwise expressly
provided in Paragraph 7 of this Letter Agreement, all the
provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will apply
to the foregoing Technical Dispatch Reliability Guarantee.
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 will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 14
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: SPARES SUPPORT
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase
Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase
by the Buyer of certain Aircraft, under the terms and conditions set
forth in said Agreement. The Buyer and the Seller have agreed to set
forth in this Letter Agreement No. 14 (the "Letter Agreement")
certain additional terms and conditions regarding the 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 Agreement, that
the provisions of said Agreement are hereby incorporated herein by
reference, and that this Letter Agreement will be governed by the
provisions of said Agreement, except that if the Agreement and this
Letter Agreement have specific provisions which are inconsistent,
the specific provisions contained in this Letter Agreement will
govern.
1. ***
2. 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 2 will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of the
Agreement will apply to this Letter Agreement.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
LETTER AGREEMENT NO. 15
As of November 24, 1998
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: CERTIFICATION
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A330/A340 Purchase
Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase
by the Buyer of certain Aircraft, under the terms and conditions set
forth in said Agreement. The Buyer and the Seller have agreed to set
forth in this Letter Agreement No. 15 (the "Letter Agreement")
certain additional terms and conditions regarding the 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 Agreement, that
the provisions of said Agreement are hereby incorporated herein by
reference, and that this Letter Agreement will be governed by the
provisions of said Agreement, except that if the Agreement and this
Letter Agreement have specific provisions which are inconsistent,
the specific provisions contained in this Letter Agreement will
govern.
1. STANDARD AIRWORTHINESS CERTIFICATE
Pursuant to Subclause 2.3 of the Agreement, the Seller is required
to deliver each Aircraft with the Certificate of Airworthiness for
Export issued by the DGAC for the Aircraft, and in a condition
enabling the Buyer (or an eligible person under then applicable
law) to immediately obtain at the time of delivery a US Standard
Airworthiness Certificate issued by the DGAC, as the
representative of the FAA, pursuant to Part 21 of the US Federal
Aviation Regulations, and ***.
Under current US Federal Aviation regulations, the FAA will not
issue a Standard Airworthiness Certificate for an Aircraft until
(i) title to the Aircraft has passed from the Seller to the Buyer
and (ii) such Aircraft is registered under the laws of the United
States. Therefore, for each Aircraft, there will be a period
between the time of transfer of title and the receipt of the
Standard Airworthiness Certificate issued pursuant to the US
Federal Aviation Regulations.
***
2. ***
Pursuant to Subclause 2.3 of the Agreement, the Seller is required
to deliver the Aircraft in a condition enabling the Buyer to
obtain at time of delivery of the first A330 Aircraft and first
A340 Aircraft ***.
***
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 2 will be void and of no force or effect.
Notwithstanding the preceding sentence, the terms of Subclauses
19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
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/ Xxxxxxx Lascaux
-------------------
Its: Director Contracts
Date: November 24, 1998
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxx X. Xxxx
------------------
Its: Treasurer
Date: November 24, 1998
