Exhibit 10.1
(The Company has applied to the Commission
for confidential treatment of
certain portions of this exhibit)
AIRBUS A330 PURCHASE AGREEMENT
Dated as of December 21, 2000
between
AVSA, S.A.R.L.,
and
NORTHWEST AIRLINES, INC.
C O N T E N T S
CLAUSES TITLE PAGE
------- ----- ----
0 PURCHASE AGREEMENT 3
1 DEFINITIONS 4
2 SALE AND PURCHASE 10
3 CHANGES 11
4 PRICE 13
5 PRICE REVISION 17
6 PAYMENT TERMS 18
7 PLANT REPRESENTATIVES - INSPECTION 20
8 NORTHWEST'S ACCEPTANCE 22
9 DELIVERY 26
10 EXCUSABLE DELAY 28
11 INEXCUSABLE DELAY 32
12 WARRANTIES AND SERVICE LIFE POLICY 34
13 PATENT INDEMNITY 57
14 TECHNICAL PUBLICATIONS 61
15 FIELD ASSISTANCE 62
16 TRAINING AND TRAINING AIDS 63
17 VENDORS' PRODUCT SUPPORT 64
18 BUYER FURNISHED EQUIPMENT AND DATA 65
ii
C O N T E N T S
CLAUSES TITLE PAGE
------- ----- ----
19 ASSIGNMENT 68
20 DATA RETRIEVAL 70
21 TERMINATION FOR CERTAIN EVENTS 71
22 MISCELLANEOUS PROVISIONS 73
iii
C O N T E N T S
EXHIBITS
--------
EXHIBIT A STANDARD SPECIFICATION
EXHIBIT B A330-300 OPTIONS SUMMARY
EXHIBIT C SCN FORM
EXHIBIT D AIRFRAME PRICE REVISION FORMULA
EXHIBIT E (GE) GENERAL ELECTRIC PRICE REVISION FORMULA
EXHIBIT E (PW) XXXXX & XXXXXXX XXXXX REVISION FORMULA
EXHIBIT E (RR) ROLLS XXXXX XXXXX REVISION FORMULA
EXHIBIT F CERTIFICATE OF ACCEPTANCE
EXHIBIT G SELLER SERVICE LIFE POLICY
EXHIBIT H XXXX OF SALE
1
C O N T E N T S
LETTER AGREEMENTS
-----------------
LETTER AGREEMENT No. 1 PURCHASE INCENTIVES
LETTER AGREEMENT No. 2 OPTIONS AND FLEXIBILITY
LETTER AGREEMENT No. 3 CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) GUARANTEE
LETTER AGREEMENT No. 4 DISPATCH RELIABILITY GUARANTEE
LETTER AGREEMENT No. 5A PERFORMANCE GUARANTEES FOR GENERAL ELECTRIC POWERED
AIRCRAFT
LETTER AGREEMENT No. 5B PERFORMANCE GUARANTEES FOR XXXXX & WHITNEY POWERED
AIRCRAFT
LETTER AGREEMENT No. 5C PERFORMANCE GUARANTEES FOR ROLLS ROYCE POWERED
AIRCRAFT
LETTER AGREEMENT No. 6 A330-500
LETTER AGREEMENT No. 7 MISCELLANEOUS ISSUES
LETTER AGREEMENT No. 8 PREDELIVERY PAYMENTS
LETTER AGREEMENT No. 9 CUSTOMIZATION
LETTER AGREEMENT No. 10 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LETTER AGREEMENT No. 11 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
2
P U R C H A S E A G R E E M E N T
This agreement is made this 21st day of December 2000
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 "AVSA")
and
Northwest Airlines, Inc., a corporation organized and existing
under the laws of the State of Minnesota, United States of
America, having its principal corporate offices located at
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000, XXX
(hereinafter referred to as "Northwest")
WHEREAS,
a) Northwest wishes to purchase, and AVSA is willing to sell, twenty-four
(24) firm Airbus Industrie A330-300 model aircraft, upon the terms and
conditions herein provided;
3
b) AVSA is willing to grant Northwest options to purchase (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) option and
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITOES AND
EXCHANGE COMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)GUARANTEE
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
purchase right Airbus A330-300 model aircraft, upon the terms and conditions
herein provided;
and
c) AVSA is a sales subsidiary of Airbus Industrie, G.I.E., and shall
purchase the Aircraft from Airbus Industrie, G.I.E., for resale to
Northwest.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
4
1 - DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, the following terms
shall have the following meanings:
A330 PRODUCT SUPPORT AGREEMENT - the Airbus Product Support Agreement for
A330 Aircraft dated as of even date herewith among Northwest, ASCO and AVSA,
together with all exhibits, appendixes and letter agreements thereto.
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
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. For purposes of the preceding sentence,
"control" of an entity shall mean the direct or indirect ownership of
voting securities having the power to direct or cause the direction of
the management and policies of such entity.
AGREEMENT - this Airbus X000-000 Xxxxxxxx Agreement, including all
exhibits, appendixes and letter agreements attached hereto, as the same
may be amended or modified and in effect from time to time.
AIRCRAFT - any or all of the (i) Firm Aircraft, (ii) Option Aircraft
that have been converted to a firm order, or (iii) Purchase Right
Aircraft that have been converted to a firm order, to be purchased by
AVSA and sold to Northwest 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.
ASCO - Airbus Service Company, Inc., a corporation organized and
existing under the laws 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) EADS Airbus S.A. (formerly known as Aerospatiale Matra
Airbus S.A.) ("Aerospatiale"), whose principal office is at
00, Xxxxxxxxx xx Xxxxxxxxxxx
00000 Xxxxx
Xxxxxx
or any successor thereto
5
(2) Airbus UK Ltd , whose principal office is at
Warwick House
PO Box 87
Farnborough Aerospace Centre
Farnborough
Hants XX00 0XX
Xxxxxxx
or any successor thereto
(3) Construcciones Aeronauticas S.A., whose principal office is at
404 Xxxxxxx xx Xxxxxx
00000 Xxxxxx
Xxxxx
or any successor thereto
(4) XXXX Airbus GmbH (formerly known as DaimlerChrysler Aerospace
Airbus GmbH), whose principal office is at
Kreetslag 10
Xxxxxxxx 00 00 00
00000 Xxxxxxx
Xxxxxxx
or any successor thereto
ATA SPECIFICATION 100 - the specification issued by the Air Transport
Association of America relating to manufacturers' technical data.
ATA SPECIFICATION 101 - the specification issued by the Air Transport
Association of America relating to ground equipment technical data.
ATA SPECIFICATION 102 - the specification issued by the Air Transport
Association of America relating to software programs.
ATA SPECIFICATION 200 - the specification issued by the Air Transport
Association of America relating to integrated data processing.
ATA SPECIFICATION 300 - the specification issued by the Air Transport
Association of America relating to the packaging of spare parts
shipments.
ATA SPECIFICATION 2000 - the specification issued by the Air Transport
Association of America relating to an industry-wide communication
system linking suppliers and users for the purposes of spares
provisioning, purchasing, order administration, invoicing and
information or data exchange.
6
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).
AVSA-SUPPLIED BUYER FURNISHED EQUIPMENT - as referred to in Subclause
18.7 of this Agreement.
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 shall be furnished by Northwest and installed in the
Aircraft by AVSA, as defined in the Specification.
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 12.2.1.2 of this Agreement.
FINAL CONTRACT PRICE - as defined in Subclause 4.2 of this Agreement.
FIRM AIRCRAFT - any or all of the twenty-four (24) Airbus Industrie
A330-300 model aircraft to be purchased by AVSA and sold to Northwest
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.
IN-HOUSE WARRANTY - as defined in Subclause 12.1.7 (i) of this
Agreement.
IN-HOUSE WARRANTY LABOR RATE - as defined in Subclause 12.1.7(v)(a) of
this Agreement.
INTERFACE PROBLEM - as defined in Subclause 12.4.1 of this Agreement.
ITEM - as defined in Subclause 12.2.1.1 of this Agreement.
LIBOR - for each stated interest period, the rate determined on the
basis of the offered rates for deposits in US dollars, which appear on
the Reuters Screen LIBO Page as of 11:00 a.m., London time, on the day
that is two (2) days (other than a Saturday, Sunday or a day that is a
legal holiday or a day on which banking institutions are authorized to
close in the City of New York, New York, London, England, or Paris,
France) before the first
7
day of an interest period. If at least two (2) such offered rates
appear on the Reuters Screen LIBO Page, the rate for that interest
period shall be the arithmetic mean of such offered rates (rounded
upwards, if necessary, to the nearest one hundred thousandth of a
percentage point). If only one (1) offered rate appears, the rate
for that interest period shall be the average (rounded upwards, if
necessary, to the nearest one hundred thousandth of a percentage point)
of the respective rates notified to AVSA by four (4) major banks in the
London interbank market selected by AVSA and Northwest as the rate at
which such bank is offered deposits in US dollars at or about 11:00
a.m., London time, on the date 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) prior to the first day of
such interest period in the interbank Eurodollar market on such date
for that interest period and in a principal amount equal to an amount
of not less than $1,000,000, provided, however, that if the banks
selected as aforesaid are not quoting as set forth in this sentence,
the rate in respect of such interest period shall be determined on the
basis of LIBOR in effect for the previous interest period. "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 BREACH - as defined in Subclause 21.1 of this Agreement.
OPTION AIRCRAFT - any or all of the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Airbus Industrie A330-300 aircraft for which AVSA has granted Northwest
an option to purchase (excluding the Purchase Right Aircraft), together
with all components, equipment, parts and accessories installed in or
on such aircraft and the Propulsion Systems installed thereon upon
delivery.
PREDELIVERY PAYMENT - any payment made against the Final Contract Price
of an Aircraft in accordance with Subclause 6.2 of this Agreement.
PRIME RATE - the rate of interest per annum publicly announced from
time to time by Citibank, N.A. in New York, New York, as its prime or
base or equivalent lending rate.
PRODUCT SUPPORT AGREEMENTS - as referred to in Subclause 17.1.1 of this
Agreement.
PROPULSION SYSTEMS - the two (2) General Electric CF6-80-E1A3, Xxxxx &
Xxxxxxx XX 4168A or Rolls Xxxxx Xxxxx 772B powerplants to be installed
on an Aircraft at delivery, each composed of the powerplant (as such
term is defined in Chapters 70-80 of ATA Specification 100 (Revision
22), but limited to the equipment, components, parts and accessories
included in the powerplant, as so defined), that have been sold to the
Manufacturer by, as applicable, General Electric, Xxxxx & Xxxxxxx or
Rolls Royce.
8
PURCHASE RIGHT AIRCRAFT - any or all of the (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
Airbus Industrie A330-300 model aircraft for which Northwest has a
purchase right, 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 FURNISHED EQUIPMENT - for any Aircraft, all of the items of
equipment that shall be furnished by AVSA and installed in the Aircraft
by AVSA, as defined in the Specification.
SELLER SERVICE LIFE POLICY - as referred to in Subclause 12.2 of this
Agreement.
SPECIFICATION - as defined in Subclause 2.2 of this Agreement.
STANDARD SPECIFICATION - as defined in Subclause 2.2 of this Agreement.
VENDOR - each manufacturer (other than the manufacturer of the
Propulsion Systems) and any successor thereof, of a component,
equipment, accessory or part installed in an Aircraft at its delivery
to Northwest under this Agreement, or any replacement therefor, other
than a Warranted Part, and listed in the Supplier Product Support
Agreements manual referred to in Subclause 12.3.1 of this Agreement.
VENDOR COMPONENT - as defined in Subclause 12.4.3 of this Agreement.
VENDOR PARTS - as defined in Subclause 12.3.1 of this Agreement.
WARRANTED PART - as defined in Subclause 12.1.1 of this Agreement.
WARRANTY CLAIM - as defined in Subclause 12.1.6(v) of this Agreement.
WORKING DAY - with respect to any action to be taken hereunder, a day
other than a Saturday, Sunday or other day designated as a holiday in
the jurisdiction in which such action is required to be taken.
The following rules of construction apply to this Agreement:
(i) the definition of a singular shall apply to plurals of the same
words;
(ii) "include" and "including" are not limiting;
9
(iii) "hereby," "herein," "hereof," "hereunder," "the Agreement,"
"this Agreement," and any like words refer to this Agreement and
not a particular Clause thereof; and
(iv) a reference herein to a Clause, Subclause, Exhibit, Attachment
or Appendix without further reference is to the relevant Clause,
Subclause, Exhibit, Attachment or Appendix of this Agreement.
Technical and trade terms not otherwise defined herein shall have the
meanings assigned to them as generally accepted in the aircraft
manufacturing industry.
10
2 - SALE AND PURCHASE
2.1 GENERAL
AVSA shall cause to be manufactured and shall sell and deliver, and
Northwest shall buy and take delivery of, the Aircraft subject to the
terms and conditions contained in this Agreement.
2.2 SPECIFICATION DOCUMENTS
The Aircraft shall be manufactured in accordance with the A330-300
Standard Specification, Document No. G.000.03000, Issue 6, including
Revision 1, dated July 15, 1998 (the "Standard Specification"). Such
Standard Specification, a copy of which is annexed hereto as Exhibit A
to this Agreement, as amended by the change orders set forth in Exhibit
B hereto, is hereinafter referred to as the "Specification." The
Specification may be further modified from time to time pursuant to the
provisions of Clause 3 below.
2.3 CERTIFICATION
Each Aircraft shall be delivered to Northwest with the Certificate of
Airworthiness for Export issued by the DGAC and in a condition enabling
Northwest (or a person eligible to obtain such certificate under then
applicable law) to obtain at the time of delivery a Standard
Airworthiness Certificate issued pursuant to Part 21 of the US Federal
Aviation Regulations permitting Northwest to operate the Aircraft under
Part 121 of the US Federal Aviation Regulations. AVSA shall 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 non-standard operation on Northwest's routes.
Except as set forth in this Subclause 2.3, AVSA shall not be required
to obtain any other certificate or approval with respect to the
Aircraft.
2.4 AVSA shall deliver each Aircraft with provisions suitable for that
equipment required to be incorporated on such Aircraft to meet those
additional requirements of the US Federal Aviation Regulations which
(i) are generally applicable with respect to transport category
aircraft to be used in United States certificated air carriage and (ii)
are required to be complied with on or before the date of delivery of
such Aircraft, provided that any required amendment to the
Specification resulting from such additional requirements shall be set
forth in an SCN which shall be effected as provided in Clause 3 hereof.
Northwest shall cooperate with AVSA in complying with the foregoing
requirements.
11
3 - CHANGES
3.1 SPECIFICATION CHANGE NOTICES
The Specification may be amended from time to time by a Specification
Change Notice (each such Specification Change Notice being herein
called an "SCN" and being in the form of Exhibit C hereto). Each SCN
shall set forth in detail the particular changes to be made in the
Specification, any materials to be deleted from the Aircraft by AVSA in
connection with such SCN, and the effect, if any, of such changes on
design, performance, weight, balance, time of delivery, Buyer Furnished
Equipment and price of each Aircraft affected thereby and
interchangeability or replaceability of parts. SCNs shall not be
binding on either party until signed by persons duly authorized in
writing by Northwest and AVSA, but upon being so signed shall
constitute amendments to this Agreement.
3.2 DEVELOPMENT CHANGES
The Specification may also be revised by AVSA without an SCN or
Northwest's consent 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, guaranteed weight, maintenance
requirements or performance of the Aircraft or adversely change the
interchangeability or replaceability requirements of the Specification
(hereinafter called "Development Changes"). AVSA shall notify Northwest
of all Development Changes prior to incorporation in the Specification.
3.3 REQUESTS AND APPROVALS
3.3.1 In the event that Northwest requests a change to the Specification,
AVSA shall issue a Request for Change (RFC) and carry out a feasibility
study of such change. If AVSA determines that such RFC is feasible to
incorporate, AVSA shall produce an SCN and submit such SCN to Northwest
for Northwest's approval. If such SCN is rejected by Northwest, such
RFC and proposed SCN shall be canceled without charge to Northwest.
3.3.2 In the event that Northwest requests AVSA in writing to incorporate a
proposed change (excluding Development Changes) in an Aircraft and AVSA
agrees to such request but the change is not subsequently made the
subject of an SCN for any reason (other than AVSA's unreasonable
refusal to sign the SCN or otherwise acting in bad faith), Northwest
shall pay AVSA the full cost of design and other work resulting from
such request and incurred by AVSA, provided that in the event AVSA's
reasonable estimate of the cost of developing such proposed change is
higher than US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
AVSA shall have notified Northwest in writing within (CONFIDENTIAL
MATERIAL
12
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Working
Days after AVSA's receipt of Northwest's request of such cost estimate
and secured Northwest's agreement prior to incurring any such costs.
In the event that Northwest requests AVSA in writing to proceed with a
proposed change before any requisite approval of the DGAC and FAA has
been obtained and such DGAC or FAA approval is not subsequently
obtained, any SCN executed in connection with such proposed change
shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
3.4 SPECIFICATION CHANGES BEFORE DELIVERY
If, pursuant to the promulgation of any applicable law or regulation,
any change in the Specification has to be made before delivery of any
Aircraft to enable Northwest to obtain a Standard Airworthiness
Certificate for such Aircraft referred to in Subclause 2.3, AVSA shall
make or cause to be made the required change or modification to the
Aircraft. For each such change, the parties shall sign an SCN
specifying the effect, if any, of such change on design, performance,
weight, balance, time of delivery, and Buyer Furnished Equipment of
each Aircraft affected thereby and interchangeability or replaceability
of parts. If AVSA anticipates that the scheduled delivery of any
Aircraft shall be postponed by reason of such change, the delivery date
of such Aircraft as provided in Subclause 9.1 shall be extended to the
extent of such postponement.
The effect on price of such a change shall be borne by(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
3.5 SPECIFICATION CHANGES AFTER DELIVERY
Subclause 3.4 shall not require AVSA to make any changes or
modifications to or to make any payments or take any other action with
respect to any Aircraft delivered to Northwest prior to the time any
law or regulation referred to in Subclause 3.4 becomes effective. Any
such changes or modifications made to an Aircraft after its delivery to
Northwest shall be at Northwest's expense.
13
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 The Base Price of the Airframe shall be the sum of the Base Prices set
forth below in (i), (ii) and (iii):
(i) the Base Price of the Standard A330 Airframe, as defined in
the Standard Specification set forth in Exhibit A hereto
(excluding Buyer Furnished Equipment, Propulsion Systems and
SCNs), at delivery conditions prevailing in January 2000,
which is:
US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)) and
(ii) the Base Price of SCNs covering options selected by Northwest
from Exhibit B, as it may be supplemented, which, at delivery
conditions prevailing in January 2000, is estimated at:
US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars-(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)), and
(iii) the Base Price of seats and galleys, the price and scope for
which will be agreed between AVSA and Northwest in an SCN.
14
4.1.1.2 The Base Price of the Airframe of each Aircraft shall be revised to the
actual delivery date of such Aircraft in accordance with the Airframe
Price Revision Formula set forth in Subclause 5.1 hereto.
15
4.1.2 BASE PRICE OF THE PROPULSION SYSTEMS
4.1.2.1 The Base Price of the Propulsion Systems (General Electric CF6-80-E1A3)
and additional standard equipment at delivery conditions prevailing in
January 2000 is:
US$ --(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars --(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)).
Said Base Price has been calculated with reference to the Reference
Price indicated by General Electric of US$(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) (US
dollars --(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) )in accordance with delivery conditions
prevailing in April 1998 (CPI 151.09).
Said Reference Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the General Electric Price Revision
Formula set forth in Subclause 5.2 hereto.
4.1.2.1 The Base Price of the Propulsion Systems (Xxxxx & Xxxxxxx XX 4168A) and
additional standard equipment at delivery conditions prevailing in
January 2000 is:
US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars --(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) ).
Said Base Price has been calculated with reference to the Reference
Price indicated by Xxxxx & Whitney of US$(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) (US
dollars(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
16
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)) in accordance with economic conditions
prevailing in December 1998.
Said Reference Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the Xxxxx & Xxxxxxx Revision Formula
set forth in Subclause 5.2 hereto.
4.1.2.1 The Base Price of the Propulsion Systems (Rolls Xxxxx Xxxxx 772B) and
additional standard equipment at delivery conditions prevailing in
January 2000 is:
US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) ).
Said Base Price has been calculated with reference to the Reference
Price indicated by Rolls Royce of US(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT) (US dollars (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) ) in
accordance with delivery conditions prevailing in January 2000.
Said Reference Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the Rolls Royce Revision Formula set
forth in Subclause 5.2 hereto.
4.2 FINAL CONTRACT PRICE
The Final Contract Price of an Aircraft shall 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
2000), of any SCNs constituting a part of such Aircraft that
are entered into pursuant to Clause 3 (excluding Subclause
3.4) after the date of execution of this Agreement, as
adjusted to the date of delivery of such Aircraft in
accordance with Subclause 5.1
17
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 amount resulting from any other provisions of this
Agreement and/or any other written agreement between Northwest
and AVSA relating to the Aircraft and specifically making
reference to the Final Contract Price of an Aircraft.
4.3 TAXES, DUTIES AND IMPOSTS
4.3.1 AVSA shall bear and pay the amount of any and all taxes, duties,
imposts or similar charges of any nature whatsoever (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) that are
(i) imposed upon Northwest, (ii) imposed upon AVSA with an obligation
on Northwest to withhold or collect the amount thereof from AVSA or
(iii) imposed upon Northwest with an obligation on AVSA to withhold or
collect such amount from Northwest, 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, equipment
or part delivered or furnished hereunder, provided such taxes, duties,
imposts or similar charges have been levied, assessed, charged or
collected under laws promulgated and enforceable in France
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.3.2 Northwest shall bear and pay the amount of any and all taxes, duties,
imposts or similar charges of any nature whatsoever that are (i)
imposed upon AVSA, (ii) imposed upon Northwest with an obligation on
AVSA to collect the amount thereof for Northwest or (iii) imposed upon
AVSA with an obligation for Northwest to withhold such amount from
AVSA, and that are levied, assessed, charged or collected for or in
connection with the fabrication, manufacture, modification, assembly,
sale, delivery or use of 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 levied, assessed, charged or collected under laws
promulgated and enforceable in countries other than France
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) If Northwest is compelled by law to pay such taxes, duties,
imposts or similar charges as a deduction or withholding , then
Northwest shall ensure that the sums received by AVSA under this
Agreement shall be equal to the full amounts expressed to be due AVSA
hereunder, without deduction or withholding on account of and free from
any and all taxes, levies, imposts, duties or charges of whatever
nature, and Northwest shall pay such
18
additional amounts as may be necessary so that the net amount received
by AVSA after such deduction or withholding shall equal the amounts
that would have been received in the absence of such deduction or
withholding.
4.3.3 AVSA shall in its own name do all things necessary with respect to the
export of the Aircraft from France and shall pay any customs duties,
taxes and fees required to be paid with respect to such export of the
Aircraft which are imposed under laws promulgated and enforceable in
France(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
4.3.4 It is expressly understood and agreed that AVSA's undertaking in
Subclause 4.3.1 shall not apply to taxes, duties, imposts or similar
charges of any nature whatsoever, relating to the use of or payment for
any Aircraft (excluding income, franchise, and doing business taxes
imposed on AVSA), component, accessory, equipment or part delivered or
furnished under this Agreement in the United States of America.
4.3.5 It is expressly understood and agreed that Northwest's undertaking in
Subclause 4.3.2 shall not apply to taxes imposed on AVSA that are based
on or measured by gross or net income or receipts or that are based on
or measured by AVSA's doing business, capital or net worth, or other
taxes, however denominated, in the nature of such taxes.
19
5 - PRICE REVISION
5.1 AIRFRAME PRICE REVISION FORMULA
The Base Price of each Airframe for each Aircraft shall be revised to
the actual delivery date of such Aircraft in accordance with the
revision formula set forth in the Airframe Price Revision Formula
attached hereto in Exhibit D.
5.2 PROPULSION SYSTEMS PRICE REVISION FORMULA
The Reference Price of the Propulsion Systems shall 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
Exhibit E hereto.
20
6 - PAYMENT TERMS
6.1 Northwest shall pay all sums due hereunder in immediately available
funds in United States dollars by credit to Credit Lyonnais, New York
Branch, for transfer by Credit Lyonnais to AVSA's account with Credit
Lyonnais at 0, Xxxxxxxxx Xxxxxxx Xxxxxxxxxx, 00000 Xxxxxxxx, Xxxxxx, or
to such other account at any New York Clearing House Member Bank as
AVSA shall designate by notice to Northwest.
6.2 PREDELIVERY PAYMENTS
Predelivery Payments shall be paid by Northwest to AVSA for each
Aircraft in accordance with the provisions of this Agreement.
6.3 PAYMENT OF FINAL CONTRACT PRICE
Concurrently with the delivery of each Aircraft, Northwest shall pay to
AVSA the Final Contract Price therefor, less the total amount of the
Predelivery Payments theretofore received by AVSA for such Aircraft
under Subclause 6.2 above. AVSA's receipt of the full amount of such
payments shall be a condition precedent to AVSA's obligation to deliver
such Aircraft.
6.4 PAYMENT OF OTHER AMOUNTS
6.4.1 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 and 6.3 above shall be paid by Northwest concurrently
with the delivery of the corresponding Aircraft or, if invoiced after
delivery of such Aircraft, within (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)after the invoice date. AVSA
and Northwest agree that with respect to payments to be made under this
Subclause 6.4.1, and for the purposes of Clause 21, Northwest shall not
be deemed to be in default unless such payment is not made within
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)after invoice date.
6.4.2 Notwithstanding any other rights AVSA may have at contract or at law,
Northwest and AVSA hereby agree that should any amount under this
Agreement become due and payable by Northwest, and not be paid in full
in immediately available funds on the date due (unless contested by
Northwest in good faith), then AVSA shall have the right to debit and
apply, in whole or in part, the unused amount of any credit made
available by AVSA to Northwest against such unpaid amount. AVSA shall
promptly notify Northwest in writing after such debiting and
application.
6.5 OVERDUE PAYMENTS
21
If any payment due AVSA is not received by AVSA on the date or dates as
agreed upon between Northwest and AVSA, AVSA shall have the right to
claim from Northwest, and Northwest shall promptly pay to AVSA, upon
receipt of such claim, interest (on the basis of a 365 day year) at a
rate per annum equal to the sum of (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT) 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 AVSA.
AVSA's right to receive such interest shall be in addition to any other
rights of AVSA hereunder or at law.
6.6 REFUND OF PREDELIVERY PAYMENTS
Northwest shall have no right to any refund of any deposit or
Predelivery Payment received by AVSA, except as provided under this
Agreement.
6.7 PROPRIETARY INTEREST
Northwest shall not, by virtue of anything contained in this Agreement
(including, without limitation, any Predelivery Payments hereunder, or
any designation or identification by AVSA of a particular Aircraft as
an Aircraft to which any of the provisions of this Agreement refer),
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 in full for such Aircraft as provided
in this Agreement.
6.8 TENDER OF DELIVERY
In addition to any other rights and remedies available to AVSA, AVSA
shall not be obligated to tender delivery of any Aircraft to Northwest
and shall have no further liability to Northwest with respect thereto,
if Northwest fails to make any Predelivery Payment (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)or if AVSA
has terminated this Agreement pursuant to Clause 21.
6.9 PAYMENT IN FULL
Except as provided for herein (including, but not limited to, Subclause
4.3), Northwest's obligation to make payments to AVSA hereunder shall
not be affected by and shall be determined without regard to any set
off, counterclaim, recoupment, defense or other right that Northwest
may have against AVSA and all such payments shall be made without
deduction or withholding of any kind.
22
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 shall at all reasonable times during business hours be open to
inspection by duly authorized representatives of Northwest or its
designee at the respective works of the Associated Contractors and, if
possible, at the works of their respective subcontractors, and such
representatives shall, 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
shall be allowed a reasonable time to make the items available for
inspection elsewhere). The procedures for such inspections shall be
agreed upon between AVSA's and Northwest's representatives prior to any
inspection.
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, AVSA shall
furnish free-of-charge adequate secretarial assistance and suitable
space, office equipment and facilities in or conveniently located with
respect to Aerospatiale's works in Toulouse, France, for the use of not
more than four (4) representatives of Northwest during the
aforementioned period(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT).
7.1.3 All inspections, examinations and discussions with AVSA's, the
Associated Contractors' or their respective subcontractors' engineering
or other personnel by Northwest and its said representatives shall be
performed in such manner as not to delay or hinder the work to be
carried out on the Aircraft or the proper performance of this
Agreement. In no event shall Northwest or its representatives be
permitted to inspect any aircraft other than the Aircraft.
7.2 INDEMNITY
SELLER'S INDEMNITY
AVSA SHALL INDEMNIFY AND HOLD HARMLESS NORTHWEST, 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 NORTHWEST'S
REPRESENTATIVES PARTICIPATING IN ANY TESTS, CHECKOUTS OR INSPECTIONS
UNDER THIS CLAUSE 7) CAUSED BY NORTHWEST OR ITS REPRESENTATIVES, AND
(II) FOR ANY LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF OR DAMAGE
TO PROPERTY OF NORTHWEST'S SAID REPRESENTATIVES) CAUSED BY NORTHWEST OR
ITS REPRESENTATIVES, IN EITHER CASE WHEN ARISING OUT OF OR IN
23
CONNECTION WITH ANY SUCH TESTS, CHECKOUTS, OR INSPECTIONS UNDER THIS
CLAUSE 7. THIS INDEMNITY OF AVSA SHALL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT OF OR
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF NORTHWEST'S
SAID REPRESENTATIVES.
NORTHWEST SHALL INDEMNIFY AND HOLD HARMLESS AVSA, 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 NORTHWEST'S REPRESENTATIVES PARTICIPATING IN ANY TESTS,
CHECKOUTS, OR INSPECTIONS UNDER THIS CLAUSE 7, (II) FOR LOSS OF OR
DAMAGE TO PROPERTY OF NORTHWEST'S SAID REPRESENTATIVES, AND (III)
ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
OF NORTHWEST'S SAID REPRESENTATIVES. WITH RESPECT TO SUBCLAUSES (I) AND
(II) OF THE PRECEDING SENTENCE, NORTHWEST SHALL NOT BE OBLIGATED TO
INDEMNIFY OR HOLD HARMLESS AVSA WHERE THE LIABILITIES, DAMAGES, LOSSES,
COSTS OR EXPENSES ARISE FROM AVSA'S NEGLIGENCE OR WILLFUL MISCONDUCT.
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) SHALL PROMPTLY GIVE NOTICE TO THE OTHER
PARTY (INDEMNITOR), AND THE INDEMNITOR SHALL ASSUME AND CONDUCT THE
DEFENSE THEREOF, AND SHALL HAVE THE RIGHT TO EFFECT ANY SETTLEMENT
WHICH IT, IN ITS OPINION, DEEMS PROPER AND WHICH IMPOSES NO LIABILITY
OR OTHER OBLIGATION ON THE INDEMNITEE.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE
DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE INDEMNITEE SHALL HAVE THE
RIGHT TO PROCEED WITH DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS
APPROPRIATE AND SHALL 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 SHALL BE DEEMED TO BE A LAWSUIT AGAINST
AVSA.
24
8 - NORTHWEST'S ACCEPTANCE
8.1 ACCEPTANCE PROCEDURES
8.1.1 AVSA or any Affiliate thereof acting as AVSA's designee shall give to
Northwest not less than (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) days prior written notice of the
proposed time when acceptance tests of an Aircraft shall be conducted,
and, in the event that Northwest elects to attend such tests, Northwest
shall comply with the reasonable requirements of AVSA with the
intention of completing all tests within(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Working Days after
commencement. The tests shall take place at Aerospatiale's works in
Toulouse, France, and shall be carried out by the personnel of the
Manufacturer (accompanied, if Northwest so wishes, by representatives
of Northwest up to a total of (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)acting as observers, of whom not
more than (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)shall have access to the cockpit at any one
time). During flight tests, these representatives shall comply with the
instructions of the Manufacturer's representatives. The Manufacturer
shall not normally be required in the course of such acceptance tests
to fly any of the Aircraft for more than an aggregate of(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) hours.
8.1.2 AVSA shall offer to Northwest a briefing prior to acceptance of each
Aircraft and (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)hour simulator session for(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) pilots,
prior to acceptance of the first Aircraft. This briefing shall provide
specific information related to acceptance flights.
8.1.3 The acceptance tests must demonstrate the satisfactory functioning of
the Aircraft at the time of delivery in accordance with the
Specification (except for immaterial variances from the Specification).
In the event that Northwest, after having received proper notice in
accordance with Subclause 8.1.1, does not attend the tests scheduled
for an Aircraft or fails to so cooperate, AVSA may complete them in the
absence of Northwest, whereupon Northwest shall be deemed to have
accepted the tests, if such tests demonstrate the
25
satisfactory functioning of the Aircraft as aforesaid, and AVSA shall
furnish such data with respect to such tests as Northwest may
reasonably request.
8.1.4 If the acceptance tests for an Aircraft are not successfully completed
or there is a defect, Northwest, within(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Working Days after
such tests, shall give notice to AVSA specifying such unsuccessful
completion or defect. Thereafter AVSA shall, without hindrance from
Northwest, carry out any necessary changes and, as soon as practicable
thereafter, resubmit the Aircraft for new acceptance tests to
demonstrate the elimination of the defect, such tests to be held and
carried out in accordance with Subclause 8.1, provided, however, that
rather than accept a delay in delivery of any such Aircraft, Northwest
and AVSA may agree to deliver such Aircraft with subsequent correction
of the defect by Northwest(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT).
26
8.2 USE OF AIRCRAFT
AVSA shall be entitled to use any Aircraft prior to its delivery to
Northwest:
(i) without Northwest's prior consent, to the extent necessary to
carry out the normal manufacturing process of the Aircraft
(but in no event for more than (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)flight hours in the case of each Aircraft),
(ii) without Northwest's prior consent, to obtain the certificates
required under Clause 2 hereof (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) ,
or
(iii) with Northwest's prior consent (such consent not to be
unreasonably withheld), for the purposes of demonstration
flights to third parties (the "Demonstration Flights").
Such use shall not affect either AVSA's obligation to deliver any
Aircraft hereunder or Northwest's obligation to accept delivery of any
Aircraft hereunder. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Northwest shall accept delivery of any Aircraft
used in accordance with this Subclause 8.2 without any reduction in
price for depreciation, or wear and tear resulting from such use.
8.3 CERTIFICATE OF ACCEPTANCE
When the Aircraft is "ready for delivery" as defined below in Subclause
9.2, Northwest shall forthwith give to AVSA a signed Certificate of
Acceptance in the form attached as Exhibit F in respect of the relevant
Aircraft. Should Northwest fail to so deliver the said Certificate,
then Northwest shall be deemed to be in default as though it had
without cause rejected delivery of such Aircraft when duly tendered to
it hereunder and shall thereafter bear all costs and expenses resulting
from such delay in delivery.
8.4 FINALITY OF ACCEPTANCE
Northwest's acceptance of delivery of each Aircraft shall constitute
waiver by Northwest of any right it may have under the Uniform
Commercial Code as adopted by the State of New York or otherwise to
revoke such acceptance for any reason, whether known or unknown to
Northwest at the time of acceptance.
8.5 INDEMNITY
27
8.5.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 8, AVSA
AND NORTHWEST PROVIDE THE INDEMNITIES SET FORTH IN SUBCLAUSES 8.5.2 AND
8.5.3.
8.5.2 AVSA'S INDEMNITY
AVSA SHALL INDEMNIFY AND HOLD HARMLESS NORTHWEST, 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 NORTHWEST'S REPRESENTATIVES PARTICIPATING IN
ANY GROUND OR FLIGHT TESTS UNDER THIS CLAUSE 8) CAUSED BY
NORTHWEST OR ITS REPRESENTATIVES, AND
(II) FOR ANY LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF OR
DAMAGE TO PROPERTY OF NORTHWEST'S SAID REPRESENTATIVES) CAUSED
BY NORTHWEST OR ITS REPRESENTATIVES,
IN EITHER CASE WHEN 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 AVSA SHALL NOT APPLY FOR ANY SUCH LIABILITIES,
DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT OF OR CAUSED BY THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF NORTHWEST'S SAID
REPRESENTATIVES.
8.5.3 NORTHWEST'S INDEMNITY
NORTHWEST SHALL INDEMNIFY AND HOLD HARMLESS AVSA, 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 NORTHWEST'S SAID REPRESENTATIVES
PARTICIPATING IN ANY GROUND OR FLIGHT TESTS UNDER THIS CLAUSE
8,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF NORTHWEST'S SAID
REPRESENTATIVES, AND
28
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF NORTHWEST'S SAID REPRESENTATIVES.
WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE PRECEDING SENTENCE,
NORTHWEST SHALL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS AVSA
WHERE THE LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM
AVSA'S NEGLIGENCE OR WILLFUL MISCONDUCT.
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) SHALL PROMPTLY GIVE NOTICE TO THE OTHER
PARTY (INDEMNITOR), AND THE INDEMNITOR SHALL ASSUME AND CONDUCT THE
DEFENSE THEREOF, AND SHALL EFFECT ANY SETTLEMENT WHICH IT, IN ITS
OPINION, DEEMS PROPER AND WHICH DOES NOT IMPOSE ANY LIABILITY OR OTHER
OBLIGATION ON THE INDEMNITEE.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE
DEFENSE OF THE CLAIM OR SUIT, THEN THE INDEMNITEE SHALL HAVE THE RIGHT
TO PROCEED WITH DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE
AND SHALL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS,
SETTLEMENTS, COSTS OR EXPENSES INCURRED IN CONDUCTING SAID DEFENSE
(INCLUDING LEGAL FEES AND RELATED EXPENSES AS WELL AS THOSE COSTS
INCURRED BY IT ESTABLISHING ITS RIGHT TO INDEMNIFICATION HEREUNDER).
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 SHALL BE DEEMED TO BE A LAWSUIT AGAINST
AVSA.
29
9 - DELIVERY
9.1 DELIVERY SCHEDULE
Subject to the provisions of this Agreement, AVSA shall have the Firm
Aircraft ready for delivery at Aerospatiale's works in Toulouse,
France, and Northwest shall accept the same, during the months set
forth below. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
................ .......................... .............. .............. ..........................
AIRCRAFT NO. MONTH/YEAR OF DELIVERY AIRCRAFT NO. MONTH/YEAR OF DELIVERY
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
1 OMITTED AND FILED 13 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2003 TREATMENT) 2004
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
2 OMITTED AND FILED 14 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2003 TREATMENT)2004
................ .......................... .............. .............. ..........................
30
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
3 OMITTED AND FILED 15 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2003 TREATMENT)2005
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
4 OMITTED AND FILED 16 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2003 TREATMENT)2005
................ .......................... .............. .............. ..........................
31
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
5 OMITTED AND FILED 17 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2003 TREATMENT)2005
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
6 OMITTED AND FILED 18 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2003 TREATMENT)2005
................ .......................... .............. .............. ..........................
32
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
7 OMITTED AND FILED 19 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2004 TREATMENT)2005
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
8 OMITTED AND FILED 20 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2004 TREATMENT)2005
................ .......................... .............. .............. ..........................
33
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
9 OMITTED AND FILED 21 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2004 TREATMENT)2005
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
10 OMITTED AND FILED 22 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2004 TREATMENT) 2005
................ .......................... .............. .............. ..........................
34
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
11 OMITTED AND FILED 23 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)2004 TREATMENT)2006
................ .......................... .............. .............. ..........................
(CONFIDENTIAL MATERIAL (CONFIDENTIAL MATERIAL
12 OMITTED AND FILED 24 OMITTED AND FILED
SEPARATELY WITH THE SEPARATELY WITH THE
SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT)t 2004 TREATMENT)2006
................ .......................... .............. .............. ..........................
Not later than(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) days prior to the date scheduled for acceptance
tests for a particular Aircraft, AVSA shall give Northwest notice of
the anticipated date within the relevant month set forth above on which
such Aircraft shall be ready for delivery. Not later than (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)days prior
to such date notified to Northwest, AVSA shall (i) confirm to Northwest
that such anticipated delivery date is firm or (ii) in the event AVSA
cannot confirm such date as being firm, confirm a new date, which shall
be no more than (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
35
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Working Days in
France before or after the originally scheduled date.
9.2 CERTIFICATE OF AIRWORTHINESS
Each Aircraft shall for the purpose of this Agreement be deemed to be
"ready for delivery" upon the satisfactory completion of its acceptance
tests in accordance with Clause 8 and the issuance of an DGAC
Certificate of Airworthiness for Export in the "Transport Category"
with respect thereto and AVSA's compliance with the other obligations
to be performed by it under Clause 2 hereof.
9.3 TITLE
Title to and risk of loss of and damage to the Aircraft shall pass to
Northwest upon delivery following execution of the Certificate of
Acceptance and upon payment of the Final Contract Price for such
Aircraft. AVSA shall provide Northwest with such appropriate documents
of title or other documents as Northwest may reasonably request.
9.4 OVERDUE PAYMENT OR FLYAWAY
In the event that:
(i) the delivery of and payment of the Final Contract Price for
the Aircraft is delayed more than (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Working Days after the firm delivery date
established pursuant to Subclause 9.1 due to the fault of
Northwest, or
(ii) within (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)days after delivery of the
Aircraft Northwest has failed to remove such Aircraft from the
place of delivery for whatever reason (except for reasons
attributable to AVSA)
then Northwest shall on demand reimburse AVSA for all reasonable costs
and expenses (including, without limitation, costs and expenses
attributable to storage, preservation and protection, insurance and
taxes) actually sustained by AVSA and resulting from any such delay or
failure. Such reimbursement shall be in addition to any other rights
that AVSA may have as a result of any such delay or failure.
9.5 FLYAWAY EXPENSES
Except for expenses to be borne by AVSA as provided in Subclause 4.3 of
this Agreement, all expenses of, and in connection with, fly-away from
Aerospatiale's works
36
in Toulouse, France, shall be borne by Northwest (CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
37
10 - EXCUSABLE DELAY
10.1 SCOPE
Neither AVSA nor the Manufacturer shall 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
(i) due to causes reasonably beyond AVSA's, the Manufacturer's or any
Associated Contractor's control (unless such cause is beyond such
control due to AVSA's, the Manufacturer's or the Associated
Contractor's fault or negligence) or (ii) not occasioned by AVSA's, the
Manufacturer's or any Associated Contractor's fault or negligence
("Excusable Delay"), including, but not limited to: acts of God or the
public enemy, natural disasters, fires, floods, hail storms, explosions
or earthquakes; epidemics or quarantine restrictions; serious
accidents; actual total or constructive total loss; any law, decision,
regulation, directive or other act (whether or not having the force of
law) of any government or of the Council of the European Community or
the Commission of the European Community or of any national, Federal,
State, municipal or other governmental department, commission, board,
bureau, agency, court or instrumentality, domestic or foreign;
governmental priorities, regulations or orders affecting allocation of
materials, facilities or a completed Aircraft; war, civil war or
warlike operations, terrorism, insurrection or riots; failure of
transportation; strikes or labor troubles causing cessation, slow down
or interruption of work; delay in obtaining any airworthiness
certification for a previously uncertificated Aircraft part, component
or computer software after due and timely diligence to procure such
certification; inability after due and timely diligence to procure
materials, accessories, equipment or parts.
It is expressly understood and agreed that each of (i) any delay caused
by Northwest's negligence or fault, and (ii) delay in delivery or
otherwise in the performance of this Agreement by AVSA 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, shall constitute Excusable Delay for AVSA. AVSA
shall as soon as practicable after becoming aware of any delay falling
within the provisions of this Subclause 10.1 (a) notify Northwest of
such delay and of the probable extent thereof and (b) subject to the
following provisions, as soon as practicable after the removal of the
cause or causes for delay, resume, (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT) , the performance of those
obligations affected under this Agreement.
AVSA and Northwest acknowledge that nothing in this Subclause 10.1
shall be deemed to obligate AVSA to undertake or forgo any action
with respect to any strike or labor troubles which AVSA would not
otherwise undertake or forgo in the exercise of sound business
judgment.
38
10.2 UNANTICIPATED DELAY
In the event that the delivery of any Aircraft is delayed by reason of
an Excusable Delay for a period of more than(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) months
after the end of the calendar month in which delivery is otherwise
required hereunder, Northwest shall be entitled to terminate this
Agreement with respect only to the Aircraft so affected upon written
notice given to AVSA within(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) days after the expiration of
such(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) month period. In the event such delay continues
for an additional (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)month period after the expiration of
such(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) month period and Northwest has not theretofore
terminated this Agreement with respect to such Aircraft, either party
shall have the option to terminate this Agreement with respect to the
Aircraft so affected upon written notice given to the other
within(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) days after the end of such
additional(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)month period. Such termination, as aforesaid,
shall discharge all obligations and liabilities of the parties
hereunder with respect to such affected Aircraft, except that AVSA
shall repay to Northwest all amounts required under this Agreement with
respect to such affected Aircraft, (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT) Northwest shall not be
entitled to receive such repayment nor to terminate this Agreement as
to any Aircraft under this Clause 10 by reason of an Excusable Delay if
such delay is caused solely by Northwest's negligence or Northwest's
fault.
10.3 ANTICIPATED DELAY
In respect of any Aircraft, AVSA may conclude, based on a reasonable
and good faith appraisal of the facts, that Excusable Delays shall (i)
cause delay in delivery of such Aircraft for a period of more
than (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
39
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) 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, AVSA shall give written notice to Northwest of either
(i) such delay and its related rescheduling reflecting such delay(s)
or (ii) such nondelivery. Within (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)days after
Northwest's receipt of such notice, Northwest (and, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)AVSA) may terminate this Agreement as to such rescheduled
or nondeliverable Aircraft by giving written notice to the other
party. Such termination shall discharge all obligations and
liabilities of the parties hereunder with respect to such affected
Aircraft, except that AVSA shall repay to Northwest all amounts
required under this Agreement with respect to such affected Aircraft
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT). Northwest shall not be entitled to receive
such repayment nor to terminate this Agreement as to any Aircraft
under this Clause 10 by reason of an Excusable Delay if such delay
is caused solely by Northwest's negligence or Northwest's fault.
40
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 such
Subclause (with respect to the affected Aircraft), then the date of
delivery otherwise required hereunder shall be extended by a period
equal to the delay specified in such notice.
10.5 LOST, DESTROYED OR DAMAGED AIRCRAFT
In the event that prior to delivery any Aircraft is lost, destroyed or
damaged beyond economic repair, AVSA shall notify Northwest in writing
within(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)) days after such event. Such notice shall
specify the earliest date, consistent with AVSA's and the
Manufacturer's other contractual commitments and production
capabilities, by which AVSA would be able to deliver a replacement for
such Aircraft. This Agreement shall terminate as to such Aircraft
unless Northwest gives AVSA written notice, within (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)days after
receipt by Northwest of the notice from AVSA of such loss, destruction
or damage, that Northwest desires AVSA to deliver to Northwest a
replacement for such Aircraft. If Northwest gives such notice to AVSA,
AVSA shall deliver to Northwest, at the earliest date consistent with
AVSA's and the Manufacturer's other contractual commitments and
production capabilities, an aircraft to replace the Aircraft lost,
destroyed or damaged beyond repair, and the parties shall execute an
amendment to this Agreement to evidence the delivery date for such
replacement aircraft; provided, however, that nothing herein shall
obligate AVSA to deliver such replacement aircraft if its manufacture
would require the reactivation of the Manufacturer's production line
for the model of aircraft purchased hereunder. The terms and conditions
of this Agreement applicable to the Aircraft lost, destroyed or damaged
beyond economic repair (including without limitation, the price and
price revision provisions in Clauses 4 and 5 hereof) shall apply to the
replacement aircraft (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) In the event of termination of this
Agreement as to a particular Aircraft as a result of such loss,
destruction or damage the obligations and liabilities of the parties
hereunder with respect to such Aircraft shall be discharged. AVSA shall
repay to Northwest the amount required under this Agreement with
respect to such lost, destroyed or damaged Aircraft, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Northwest
shall not be entitled to receive repayment nor to terminate this
Agreement as to any Aircraft under this Subclause 10.5 if such loss,
destruction or damage is caused by Northwest's or its representatives'
gross negligence or willful misconduct.
41
42
10.6 In the event this Agreement is terminated with respect to an Aircraft
pursuant to the provisions of this Clause 10, (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
10.7 REMEDIES
THIS CLAUSE 10 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)SET FORTH THE SOLE AND EXCLUSIVE REMEDY OF
NORTHWEST FOR EXCUSABLE DELAYS IN DELIVERY OR FAILURE TO DELIVER, AND
NORTHWEST HEREBY WAIVES ALL RIGHTS, INCLUDING WITHOUT LIMITATION ANY
RIGHTS TO DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH IT WOULD OTHERWISE
BE ENTITLED IN RESPECT THEREOF. NORTHWEST SHALL 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 SOLELY
BY THE NEGLIGENCE OR FAULT OF NORTHWEST OR ITS REPRESENTATIVES.
43
11 - INEXCUSABLE DELAY
11.1 LIQUIDATED DAMAGES
Should an Aircraft not be ready for delivery to Northwest within
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)days after the month of delivery specified in this Agreement
(as such month may otherwise be changed pursuant to this Agreement) for
reasons other than as are covered by Clause 10, Northwest shall, in
respect of any subsequent delay in delivery of such Aircraft, have the
right to claim and AVSA shall in respect of any subsequent delay pay to
Northwest as liquidated damages for the delay in delivery of such
Aircraft US$(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
11.2 TOTAL LIABILITY
Notwithstanding Subclause 11.1, the total liability of AVSA under this
Clause 11 with respect to any Aircraft shall in no event exceed the
total sum of US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
11.3 WRITTEN CLAIM
Northwest's right to recover such damages in respect of an Aircraft is
conditional upon a claim therefor being submitted in writing to AVSA by
Northwest no later than days after the date when such Aircraft was
scheduled to have been ready for delivery.
11.4 SIX-MONTH DELAY
In the event that such subsequent delay in delivery exceeds six (6)
months (a "Six-month Delay"), Northwest shall have the further right,
exercisable by written notice to AVSA given after such Six-month Delay,
to terminate this Agreement in respect only of the Aircraft that is the
subject of such delay, whereupon AVSA shall repay to Northwest
hereunder all amounts required under this Agreement in relation to such
Aircraft, (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
44
11.5 TWELVE-MONTH DELAY
In the event that such subsequent delay in delivery exceeds twelve (12)
months, AVSA shall have the right, exercisable by written notice to
Northwest given no more than (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)months after such twelve (12) month
period, to terminate this Agreement in respect only of the Aircraft
that is subject to such delay, (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) AVSA shall repay to Northwest all
amounts required under this Agreement in relation to such
Aircraft(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
11.6 BUYER FURNISHED EQUIPMENT
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pursuant to the provisions of this Clause 11, at Northwest's
election prior to exercising its rights under this Subclause 11.6.
11.7 REMEDIES
THIS CLAUSE 11(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) SET FORTH THE SOLE REMEDY OF NORTHWEST FOR
DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE
COVERED BY CLAUSE 10, AND NORTHWEST 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. NORTHWEST SHALL NOT BE ENTITLED TO CLAIM THE REMEDIES
AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 11 WHERE THE DELAY
REFERRED TO IN THIS CLAUSE 11 IS CAUSED SOLELY BY THE NEGLIGENCE OR
FAULT OF NORTHWEST OR ITS REPRESENTATIVES.
45
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
46
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 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
12.6 DUPLICATE REMEDIES
12.7 NEGOTIATED AGREEMENT
47
12 - WARRANTIES AND SERVICE LIFE POLICY
AVSA represents and warrants that the Manufacturer has
provided to AVSA the following Standard Warranty, Service Life
Policy, Vendor Warranties and Interface Commitment with
respect to the Aircraft, subject to the terms, conditions,
limitations and restrictions (including, but not limited to,
the Exclusivity of Warranties and Duplicate Remedies
provisions) as hereinafter set out, and that the same are in
full force and effect and have not been amended. AVSA hereby
assign to Northwest, and Northwest hereby accepts, all of
AVSA's rights and obligations as the "Buyer" under the said
Standard Warranty, Service Life Policy, Vendor Warranties and
Interface Commitment, and AVSA subrogates Northwest to all
such rights and obligations in respect of the Aircraft. AVSA
hereby warrants to Northwest that (i) it has all requisite
authority to make the foregoing assignment and to effect the
foregoing subrogation in favor of Northwest, (ii) such
assignment and subrogation are effective to confer on
Northwest all of the foregoing rights and obligations of AVSA,
and (iii) AVSA shall not enter into any amendment of the
provisions so assigned without the prior written consent of
Northwest.
It is understood that, in the provisions below between the
words QUOTE and UNQUOTE, capitalized terms have the meanings
assigned thereto in this Agreement, except that (i) the term
"Seller," which means the Manufacturer as between the
Manufacturer and AVSA, also means the Manufacturer in this
Agreement, and (ii) the term "Buyer" which means AVSA as
between the Manufacturer and AVSA, means Northwest in this
Agreement.
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 shall 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) having regard to the state of the art
at the date of such design, and
(iv) be free from defects arising from failure to conform to the
Specification, except as
48
to those portions of the Specification relating to
performance or where it is expressly stated that such
portions of the Specification are estimates or approximations
or design aims.
For the purposes of this Agreement, the term "Warranted Part" shall
mean any Seller proprietary component, equipment, accessory or part
that is installed on an Aircraft at the time of delivery of such
Aircraft and that (a) is manufactured to the detail design of the
Seller or a subcontractor of it and (b) bears a part number of the
Seller at the time of such delivery.
12.1.2 EXCEPTIONS
The warranties set forth in Subclause 12.1.1 shall not apply to Buyer
Furnished Equipment, nor to the engine and its associated parts, nor
to any component, accessory, equipment or part purchased by the Buyer
that is not a Warranted Part, provided, however, that:
(i) any defect in the Seller's workmanship in respect of the
installation of such items in the Aircraft, including any
failure by the Seller to conform to the installation
instructions of the manufacturers of such items that
invalidates any applicable warranty from such manufacturers,
shall 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 of such items shall
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 PERIOD
The warranties described in Subclauses 12.1.1 and 12.1.2 hereinabove
shall be limited to those defects that become apparent within
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) 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 hereinabove are limited to, at the
Seller's expense and option, the repair, replacement or correction
of, or the supply of modification kits rectifying the defect to, any
defective Warranted Part. Alternatively, the Seller may at its sole
option furnish a credit to the Buyer for the future purchase of
Material equal to the price at which the Buyer is then entitled to
acquire a replacement for the defective Warranted Part. Nothing
herein contained shall obligate the Seller to correct any failure to
conform to
49
the Specification 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.
12.1.4.2 In the event a defect covered by Subclause 12.1.1(iii) becomes
apparent within the applicable period set forth in
Subclause 12.1.3(ii), and the Seller is obligated to correct such
defect, the Seller shall also, if so requested by the Buyer in
writing, make such correction in any Aircraft that has not already
been delivered to the Buyer. However, the Seller shall not be
responsible nor deemed to be in default on account of any delay in
delivery of any Aircraft or otherwise, in respect of performance of
this Agreement, due to the Seller's undertaking to make such
correction and, rather than accept a delay in delivery of any such
Aircraft, the Buyer and the Seller may agree to deliver such Aircraft
with subsequent correction of the defect by the Buyer at the Seller's
expense, or the Buyer may elect to accept delivery and thereafter
file a Warranty Claim as though the defect had become apparent
immediately after delivery of such Aircraft.
12.1.5 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 submitted to the Seller proof reasonably
satisfactory to the Seller that the claimed defect is due to a
matter embraced within this Subclause 12.1, and that such
defect did not result from any act or omission of the Buyer,
including, but not limited to, any failure to operate and
maintain the affected Aircraft or part thereof in accordance
with the standards or any matter set forth or covered in
Subclause 12.1.10,
(iv) 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
(v) 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
50
The warranties set forth in Subclause 12.1 shall be administered as
hereinafter provided:
(i) CLAIM DETERMINATION
Warranty Claim determination by the Seller shall be reasonably
based upon the claim details, reports from the Seller's
regional representative, historical data logs, inspections,
tests, findings during repair, defect analysis and other
suitable documents and information.
(ii) TRANSPORTATION (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Transportation (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)for sending a
defective Warranted Part to the facilities designated by the
Seller shall be borne by the Buyer (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
(iii) RETURN OF AN AIRCRAFT
In the event that the Buyer desires to return an Aircraft to
the Seller for consideration of a Warranty Claim, the Buyer
shall notify the Seller of its intention to do so and the
Seller shall, 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 or at another place acceptable to
the Seller. Return of any Aircraft by the Buyer to the Seller
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
(iv) ON-AIRCRAFT WORK BY THE SELLER
In the event that a defect necessitates the dispatch by the
Seller of a working team to repair or correct such defect at
the Buyer's facilities, or in the event that the Seller
accepts the return of an Aircraft to perform or have performed
such repair or correction, then all related expenses incurred
in performing such repair or correction shall be borne
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
51
Any work performed by the Seller to rectify defects, which if
performed by the Buyer would not be eligible for a warranty
credit under the terms of Subclause 12.1.7 (v), shall be at
the Buyer's expense. (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
The Seller shall perform on-Aircraft work, subject to either
of the following conditions being met:
(a) in the Seller's opinion, such work must require the
technical expertise of the Seller, or
(b) both of
(i) the downtime of each affected Aircraft would
exceed (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT)days, not
including any scheduled maintenance
downtime, and
(ii) the number of man hours quoted in the
Seller's Service Bulletin or batch of
Service Bulletins for their embodiment on
any Aircraft would EXCEED(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT), it being understood that for
batches of Service Bulletins, the Seller
shall only count individual Service
Bulletins with more than (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)hours of elapsed time.
If the Seller is requested to perform the work, the Seller and
the Buyer shall agree on a schedule and place for the work to
be performed.
(v) WARRANTY CLAIM SUBSTANTIATION
In connection with each claim by the Buyer under this
Subclause 12.1, the Buyer shall file a claim on the Buyer's
form ("Warranty Claim") within (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT
52
TO A REQUEST FOR CONFIDENTIAL TREATMENT)days after such defect
becomes apparent. Such form must contain at least the
following(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) :
(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 the A330
Product Support Agreement) 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.
and in the case of a Warranty Claim under Subclause 12.1.7,
the additional data required under Subclause 12.1.7(iv).
Claims are to be addressed as follows:
Warranty Administration
ASCO
53
000 Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX, 00000
or any other address of which the Seller provides three (3)
Working Days' notice to the Buyer.
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(vi) REPLACEMENTS
Replacements made pursuant to this Subclause 12.1 shall be
made within the lead time defined in the Seller's Spare Parts
Price List. Replaced components, equipment, accessories or
parts shall become the Seller's property.
54
Title to and risk of loss of any Aircraft, component,
accessory, equipment or part returned by the Buyer to the
Seller shall 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 shall have such responsibility therefor as
is chargeable by law to a bailee for hire, but the Seller
shall not be liable for loss of use, and (ii) title to and
risk of loss of a returned component, accessory, equipment or
part shall pass to the Seller upon shipment by the Seller to
the Buyer of any item furnished by the Seller to the Buyer as
a replacement therefor. Upon the Seller's shipment to the
Buyer of any replacement component, accessory, equipment or
part provided by the Seller pursuant to this Subclause 12.1,
title to and risk of loss of such component, accessory,
equipment or part shall pass to the Buyer.
(vii) REJECTION
The Seller shall provide reasonable written substantiation in
case of rejection of a claim. In such event the Buyer shall
pay to the Seller reasonable inspection and test charges
incurred by the Seller in connection with the investigation
and processing of such claim. Transportation, insurance, and
any other costs associated with the return of any Warranted
Part or any other item, equipment, component or part for which
the Buyer's warranty claim is rejected by the Seller shall be
borne by the Buyer.
(viii) INSPECTION
The Seller shall 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.
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 shall 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 shall notify the Seller of
the in-house repair as soon as reasonably practicable.
(ii) CONDITIONS OF AUTHORIZATION
The Buyer shall be entitled to the benefits under this
Subclause 12.1.7 for repair of Warranted Parts:
(a) only if adequate facilities and qualified personnel
are available to the Buyer,
55
(b) 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
(c) only to the extent specified by the Seller, or, in
the absence of such specification, to the extent
reasonably necessary to correct the defect, in
accordance with the standards set forth in Subclause
12.1.10.
(iii) SELLER'S RIGHTS
The Seller shall have the right(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
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(ii), if, in the reasonable
judgment of the Seller, the nature of the defect requires
technical investigation.
The Seller shall further have the right (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
to have a representative present during the disassembly,
inspection and testing of any Warranted Part claimed to be
defective.
(iv) IN-HOUSE WARRANTY CLAIM SUBSTANTIATION
Claims for In-house Warranty credit shall be filed within the
time period set forth in and shall contain the same
information required in, Warranty Claims under Subclause
12.1.6(v) and in addition shall 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,
56
- 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, shall be a
credit to the Buyer's account in U.S. Dollars. The credit to
the Buyer's account shall be equal to the direct labor cost
expended in performing a repair and to the direct cost of
materials incorporated in the repair. Such costs shall 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
alone shall be counted. Man hours required for
maintenance work concurrently being carried out on
the Aircraft or Warranted Part shall not be included.
The man hours counted as set forth above shall be
multiplied by an agreed labor rate representing
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)the Buyer's
composite average hourly labor rate (excluding all
fringe benefits, premium time allowances, social
security charges, business taxes and similar items)
paid to the Buyer's employees whose jobs are directly
related to the performance of the repair (the
"In-house Warranty Labor Rate").
(b) Direct material costs are determined by the prices at
which the Buyer acquired such material, excluding any
parts and materials used for overhaul and furnished
free of charge by the Seller.
(vi) LIMITATION ON CREDIT
The Buyer shall in no event be credited for repair costs
(including labor and material) for any Warranted Part
exceeding (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) of the Seller's then
current catalog price
57
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) for a replacement of such defective
Warranted Part.
Such cost shall be substantiated in writing by the Seller upon
reasonable request by the Buyer.
(vii) SCRAPPED MATERIAL
The Buyer shall retain any Warranted Part defective beyond
economic repair and any defective part removed from a
Warranted Part during repair until the earlier of
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)after submission of a claim for
In-house Warranty credit relating thereto or the Seller's
written advice to the Buyer that such Warranted Part should be
scrapped. Such parts shall be returned to the Seller
within(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT) of receipt of the Seller's request
to that effect.
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.
Scrapped Warranted Parts shall be evidenced by a record of
scrapped material certified by an authorized representative of
the Buyer, which shall be kept in the Buyer's file for at
least the duration of the warranty periods set forth in this
Subclause 12.1.
(viii) LIMITATIONS ON LIABILITY OF SELLER
THE SELLER SHALL NOT BE LIABLE FOR ANY RIGHT, CLAIM OR REMEDY,
AND THE BUYER SHALL 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 WHICH WAS NOT IN COMPLIANCE WITH
THE TERMS THEREOF, 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.
58
12.1.8 STANDARD WARRANTY TRANSFERABILITY
The warranties provided for in this Subclause 12.1 for any Warranted
Part shall accrue to the benefit of any airline in revenue service
other than the Buyer, if the Warranted Part enters into the
possession of any such airline as a result of a pooling or leasing
agreement between such airline and the Buyer or upon the Buyer's sale
of the Aircraft to any such airline in accordance with Subclause
19.3, 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, shall be the
remaining portion of the original warranty in respect of such
corrected, repaired or replacement Warranted Part. In the event that
a defect is attributable to a defective repair or replacement by the
Buyer, a Warranty Claim with respect to such defect shall not be
allowable, notwithstanding any subsequent correction or repairs, and
shall immediately terminate the remaining warranties under this
Subclause 12.1 in respect of the affected Warranted Part.
12.1.10 GOOD AIRLINE OPERATION - NORMAL WEAR AND TEAR
The Buyer's rights under this 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 good commercial airline practice and in general compliance with
all technical documentation and maintenance recommendations of the
Seller (if any), the Manufacturer, the Vendors or the manufacturer of
the Propulsion Systems and its associated parts and all applicable
rules, regulations and directives of the FAA.
The Seller's liability under this Subclause 12.1 shall not extend to
normal wear and tear nor 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 in a manner other
than that set forth in Subclause 12.1.7 or otherwise approved
by the Seller;
(ii) any Aircraft or component, equipment, accessory or part
thereof that has been operated in a damaged state; 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.
59
This waiver of the Seller's liability by the Buyer shall not apply in
the cases of Subclause 12.1.10 (i) and Subclause 12.1.10 (ii) above
if the Buyer submits reasonable evidence that the defect did not
arise from nor 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 (as defined below) occur
in any Item (as defined below), then, subject to the general
conditions and limitations set forth in Subclause 12.2.4 below, the
provisions of this Subclause 12.2 shall apply.
12.2.1 DEFINITIONS
For the purposes of this Subclause 12.2, the following definitions
shall apply:
12.2.1.1 "Item" means any of the Seller components, equipment, accessories or
parts listed in Exhibit G 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 12.2.2.
12.2.1.2 "Failure" means any breakage of, or defect in, an Item that has
occurred, that can reasonably be expected to occur on a repetitive or
fleet wide basis, 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.
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 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)years after the delivery of said Aircraft to
the Buyer, the Seller shall, at its own discretion, as promptly as
practicable and for a price that reflects the Seller's financial
participation in the cost as hereinafter provided, either:
12.2.2.1 design and furnish to the Buyer a correction for such Item subject to
a Failure and provide any parts required for such correction
(including Seller designed standard parts but excluding industry
standard parts unless a part of an Item), 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
60
Life Policy in connection with the correction or replacement of an
Item shall be furnished to the Buyer at the Seller's current sales
price therefor, less the Seller's financial participation, which
shall be determined in accordance with the following formula:
61
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, at time of Failure, since delivery of
the particular Aircraft in which the Item subject to such
Failure was originally installed,
N: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)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 shall 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 shall 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 shall keep the Seller informed of any significant
incidents relating to an Aircraft, howsoever occurring or
recorded (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT).
(iii) The conditions of Subclause 12.1.10 shall have been complied
with.
(iv) The Buyer shall carry out specific structural inspection
programs for monitoring purposes as may be established from
time to time by the Seller. Such programs shall be, to the
extent possible, compatible with the Buyer's operational
requirements and shall be carried out at the Buyer's expense.
Reports relating thereto shall be regularly furnished to the
Seller.
(v) In the case of any breakage or defect, the Buyer shall report
the same in writing to the Seller within (CONFIDENTIAL
MATERIAL OMITTED AND
62
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) days after
any breakage or defect in an Item becomes apparent, whether or
not said breakage or defect can reasonably be expected to
occur in any other Aircraft, and the Buyer shall inform the
Seller in sufficient detail about the breakage or defect to
enable the Seller to determine whether said breakage or defect
is subject to this Service Life Policy.
12.2.4.3 Except as otherwise provided in this Subclause 12.2, any claim under
this Service Life Policy shall be administered as provided in, and
shall be subject to the terms and conditions of, Subclause 12.1.6.
12.2.4.4 In the event that the Seller shall have issued a modification
applicable to an Aircraft, the purpose of which is to avoid a
Failure, the Seller may elect to offer to supply to the Buyer the
necessary modification kit free of charge (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT). 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 shall 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 SHALL 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.
63
12.2.5 TRANSFERABILITY
Except as provided in Subclause 19.3, the Buyer's rights under this
Subclause 12.2 shall not be assigned, sold, leased, transferred or
otherwise alienated by operation of law or otherwise, without the
Seller's prior written consent.
Any unauthorized assignment, sale, lease, transfer or other
alienation of the Buyer's rights under this Service Life Policy
shall, as to the particular Aircraft involved, immediately void this
Service Life Policy in its entirety.
12.3 VENDOR WARRANTIES
12.3.1 SELLER'S SUPPORT
Prior to delivery of the first Aircraft under this Agreement, the
Seller shall obtain from all Vendors listed in the Supplier Product
Support Agreements manual enforceable and transferable warranties and
indemnities against patent infringements for all of the components,
equipment, accessories and parts of the Vendors that are installed in
an Aircraft at the time of delivery thereof ("Vendor Parts," it being
understood that such term shall not include the Propulsion Systems,
Buyer Furnished Equipment or other equipment selected by the Buyer to
be supplied by Vendors with whom the Seller has no existing
enforceable warranty agreements). The Seller shall also obtain
enforceable and transferable Vendor service life policies from
landing gear Vendors for 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 proof that
such default has occurred, then Subclause 12.1 or Clause 13 of this
Agreement shall 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(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
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
64
Seller reasonable proof that such default has occurred, then
Subclause 12.2 of this Agreement shall apply to the extent the same
would have been applicable had such component, equipment, accessory
or part been listed in Exhibit G hereto.
12.3.2.3 At the Seller's request, the Buyer shall assign to the Seller, and
the Seller shall 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 shall 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 (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) 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
shall, if requested by the Buyer, and without additional charge to
the Buyer, except for transportation of the Seller's personnel to the
Buyer's facilities, promptly conduct or have conducted an
investigation and analysis of such problem to determine, if possible,
the cause or causes of the problem and to recommend such corrective
action as may be feasible, provided, however, that if the Seller
determines, after such due and reasonable investigation, that the
Interface Problem was due to or caused by any default by the Buyer in
performance of its obligations hereunder, the Buyer shall pay to the
Seller all reasonable costs and expenses incurred by the Seller
during such investigation. The Buyer shall furnish to the Seller all
data and information in the Buyer's possession relevant to the
Interface Problem and shall 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 shall 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 Seller determines that the Interface Problem is primarily
attributable to the design of a Warranted Part, the Seller shall, if
requested by the Buyer, correct the design of such Warranted Part,
pursuant to the terms and conditions of Subclause 12.1.
12.4.3 VENDOR'S RESPONSIBILITY
If the Seller determines that the Interface Problem is primarily
attributable to the design
65
of a component, equipment, accessory or part other than a Warranted
Part ("Vendor Component"), the Seller shall, if requested by the
Buyer, reasonably assist the Buyer in processing any warranty claim
the Buyer may have against the manufacturer of such Vendor Component.
12.4.4 JOINT RESPONSIBILITY
If the Seller determines that the Interface Problem is attributable
partially to the design of a Warranted Part and partially to the
design of any Vendor Component, the Seller shall, if requested by the
Buyer, seek a solution to the Interface Problem through cooperative
efforts of the Seller and any Vendor involved. The Seller shall
promptly advise the Buyer of such corrective action as may be
proposed by the Seller and any such Vendor. Such proposal shall be
consistent with any then existing obligations of the Seller hereunder
and of any such Vendor to the Buyer. Such corrective action, when
reasonably accepted by the Buyer, shall 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 GENERAL
12.4.5.1 All requests under this Subclause 12.4 shall be directed both to the
Seller and the affected Vendors.
12.4.5.2 Except as specifically set forth in this Subclause 12.4, this
Subclause 12.4 shall not be deemed to impose on the Seller any
obligations not expressly set forth elsewhere in this Agreement.
12.4.5.3 All reports, recommendations, data and other documents furnished by
the Seller to the Buyer pursuant to this Subclause 12.4 shall be
deemed to be delivered under this Agreement and shall be subject to
the terms, covenants and conditions set forth in this Clause 12 and
in Subclause 22.4.
12.5 EXCLUSIVITY OF WARRANTIES AND
GENERAL LIMITATIONS OF LIABILITY
THIS CLAUSE 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 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 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER FROM ANY
DEFECT OR NONCONFORMITY OR
66
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:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY
GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
67
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT
SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY
PROVISION OF THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD UNLAWFUL,
OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE 12 SHALL
REMAIN IN FULL FORCE AND EFFECT.
12.6 DUPLICATE REMEDIES
The remedies provided to the Buyer under this Clause 12 as to any
defect in respect of the Aircraft or any part thereof are mutually
exclusive and not cumulative. The Buyer shall be entitled to the
remedy that provides the maximum benefit to it, as the Buyer may
elect, pursuant to the terms and conditions of this Clause 12 for any
such particular defect for which remedies are provided under this
Clause 12; provided, however, that the Buyer shall not be entitled to
elect a remedy under one part of this Clause 12 that constitutes a
duplication of any remedy elected by it under any other part hereof
for the same defect. The Buyer's rights and remedies herein for the
nonperformance of any obligations or liabilities of the Seller
arising under these warranties shall be in monetary damages limited
to the amount the Buyer expends in procuring a correction or
replacement for any covered part subject to a defect or
nonperformance covered by this Clause 12, and the Buyer shall not
have any right to require specific performance by the
Seller(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
UNQUOTE
In consideration of the assignment and subrogation by AVSA under this
Clause 12 in favor of Northwest in respect of AVSA's rights against
and obligations to the Manufacturer under the provisions quoted
above, Northwest 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
following:
THIS CLAUSE 12 (INCLUDING ITS SUBCLAUSES) SETS FORTH THE EXCLUSIVE
WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF AVSA,
AND THE EXCLUSIVE REMEDIES AVAILABLE TO NORTHWEST, 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.
NORTHWEST RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS
CLAUSE 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT NORTHWEST FROM ANY
DEFECT OR NONCONFORMITY OR
68
PROBLEM OF ANY KIND IN THE GOODS AND SERVICES SUPPLIED UNDER THIS
AGREEMENT. NORTHWEST HEREBY WAIVES, RELEASES AND RENOUNCES ALL
OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF AVSA
AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF NORTHWEST AGAINST AVSA,
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:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY
GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
69
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT
SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY AVSA AND NORTHWEST. IN THE EVENT THAT ANY
PROVISION OF THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD UNLAWFUL,
OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE 12 SHALL
REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to Northwest under this Clause 12 as to any
defect in respect of the Aircraft or any part thereof are mutually
exclusive and not cumulative. Northwest shall be entitled to the
remedy that provides the maximum benefit to it, as Northwest may
elect, pursuant to the terms and conditions of this Clause 12 for any
such particular defect for which remedies are provided under this
Clause 12; provided, however, that Northwest shall not be entitled to
elect a remedy under one part of this Clause 12 that constitutes a
duplication of any remedy elected by it under any other part hereof
for the same defect. Northwest's rights and remedies herein for the
nonperformance of any obligations or liabilities of AVSA arising
under these warranties shall be in monetary damages limited to the
amount Northwest expends in procuring a correction or replacement for
any covered part subject to a defect or nonperformance covered by
this Clause 12, and Northwest shall not have any right to require
specific performance by AVSA,(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT).
12.7 NEGOTIATED AGREEMENT
Northwest and AVSA agree that this Clause 12 has been the subject of
discussion and negotiation and is fully understood by the parties and
that the price of the Aircraft and the other mutual agreements of the
parties set forth in this Agreement were arrived at in consideration
of, INTER ALIA, the provisions of this Clause 12, specifically
including the Exclusivity of Warranties and General Limitations of
Liability provisions and the Duplicate Remedies provisions set forth
in Subclause 12.5 and following Subclause 12.6.
70
13 - PATENT INDEMNITY
AVSA (in the case of the Aircraft and Warranted Parts) and ASCO (in
the case of Seller Parts) represent and warrant that the Manufacturer
has provided to AVSA and ASCO the following indemnity against patent
infringements with respect to the Aircraft, Warranted Parts and
Seller Parts, subject to the terms, conditions, limitations and
restrictions (including, but not limited to, the Exclusivity of
Warranties and Duplicate Remedies provisions) as hereinafter set out,
and that the same are in full force and effect and have not been
amended. AVSA and ASCO hereby assign to Northwest, and Northwest
hereby accepts, all of AVSA's and ASCO's rights and obligations as
the "Buyer" under the said indemnity against patent infringements,
and AVSA and ASCO subrogate Northwest to all such rights and
obligations in respect of the Aircraft. AVSA and ASCO each hereby
warrants to Northwest that (i) it has all requisite authority to make
the foregoing assignment and to effect the foregoing subrogation in
favor of Northwest, (ii) such assignment and subrogation are
effective to confer on Northwest all of the foregoing rights and
obligations of AVSA and ASCO, and (iii) AVSA and ASCO shall not enter
into any amendment of the provisions so assigned without the prior
written consent of Northwest.
It is understood that, in the provisions below between the words
QUOTE and UNQUOTE, capitalized terms have the meanings assigned
thereto in this Agreement, except that (i) the term "Seller," which
means the Manufacturer as between the Manufacturer and AVSA and ASCO,
also means the Manufacturer in this Agreement, and (ii) the term
"Buyer" which means AVSA and ASCO as between the Manufacturer and
AVSA and ASCO, means Northwest in this Agreement.
QUOTE
13.1 SCOPE
The Seller shall 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):
(1) to the extent of (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)thereof in
case of any actual or alleged infringement by any Aircraft or
any Warranted Part or the use thereof of
(a) any British, French, German, Spanish or US patent, or
(b) any patent issued under the laws of any other country
in which Northwest may lawfully operate the Aircraft,
provided that:
71
(i) 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 fully entitled to all benefits
of Article 27 thereof, or in the
alternative,
(ii) 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").
(2) to the extent of(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) thereof in
case of any actual or alleged infringement by any Aircraft or
any Warranted Part or the use thereof of any patent issued
under the laws of any country not covered by (1) above in
which the Buyer is from time to time lawfully operating the
Aircraft.
The Seller's undertaking under this Clause 13 shall not apply to
components, accessories, equipment or parts which are not Warranted
Parts.
13.2 SELLER'S ACTION
Should the Buyer be enjoined from using any part of an Aircraft by
reason of infringement of a patent covered by Subclause 13.1, the
Seller shall, at its option and 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
noninfringing 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 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) after receipt by the Buyer of notice of the
institution of such suit or receipt of such claim, giving particulars
thereof. The Seller shall 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 shall be entitled at any
stage of the proceedings to assume, conduct or control the defense
thereof.
72
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 SHALL REMAIN IN FULL FORCE AND EFFECT. THIS PATENT
INDEMNITY SHALL 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 AVSA under this
Clause 13 in favor of Northwest in respect of AVSA's rights against
and obligations to the Manufacturer under the provisions quoted
above, Northwest 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 AVSA UNDER THIS CLAUSE 13 ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND NORTHWEST HEREBY WAIVES, RELEASES AND RENOUNCES
ALL OTHER INDEMNITIES, WARRANTIES, OBLIGATIONS, GUARANTEES AND
LIABILITIES ON THE PART OF AVSA AND RIGHTS,
73
CLAIMS AND REMEDIES OF NORTHWEST AGAINST AVSA, 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 SHALL REMAIN IN
FULL FORCE AND EFFECT. THIS PATENT INDEMNITY SHALL NOT BE EXTENDED,
ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AVSA AND
NORTHWEST.
74
14 - TECHNICAL PUBLICATIONS
Technical publications shall be supplied to Northwest pursuant to
Clause 2 of the A330 Product Support Agreement.
75
15 - FIELD ASSISTANCE
Field services shall be provided to Northwest pursuant to Clause 3 of
the A330 Product Support Agreement.
16 - TRAINING
Training and training aids shall be provided to Northwest pursuant to Clause 4
of the A330 Product Support Agreement
17 - VENDORS' PRODUCT SUPPORT
17.1 VENDOR PRODUCT SUPPORT AGREEMENTS
17.1.1 AVSA has obtained product support agreements transferable to
Northwest from Vendors of Seller Furnished Equipment listed in the
Specification ("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 with respect to warranties and
guarantees (copies of which have been provided to Northwest).
17.2 VENDOR COMPLIANCE
AVSA shall monitor Vendor compliance with support commitments defined
in the Product Support Agreements and shall take remedial action
together with Northwest if requested by Northwest in writing.
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.
Vendor Parts that have to be repaired outside North America shall be
sent by Northwest to(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT). All such Vendor Parts shall be
returned to Northwest with all applicable FAA tagging.
17.3.3 AVSA shall support Northwest 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
76
Northwest.
77
18 - BUYER FURNISHED EQUIPMENT AND DATA
18.1 INSTALLATION AND DELIVERY
18.1.1 Without additional charge, and in accordance with the Specification,
AVSA shall cause the Manufacturer to provide for the installation of
the Buyer Furnished Equipment.
18.1.2 AVSA shall cause the Manufacturer to advise Northwest of the dates by
which, in the planned release of engineering for an Aircraft, the
Manufacturer reasonably 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 Northwest shall furnish such detailed description and
information by the dates so specified. Such dimensions and weights
shall not thereafter be revised unless mutually agreed and set forth
in an SCN.
18.1.3 AVSA shall also cause the Manufacturer to furnish in sufficient time
to Northwest 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.
Northwest shall furnish such equipment to the Manufacturer at such
locations by such dates. Northwest, at its own expense, shall also
furnish or cause to be present at the works where such Buyer
Furnished Equipment is to be installed, when reasonably 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
Northwest warrants that all Buyer Furnished Equipment (other than
Buyer Furnished Equipment manufactured by the Manufacturer) shall
meet the requirements of the Specification, shall comply with
applicable DGAC and FAA regulations and shall be approved by the DGAC
and the FAA for installation and use on an Aircraft at the time of
delivery of such Aircraft. AVSA shall bear no expense in connection
with adjusting and calibrating Buyer Furnished Equipment to the
extent necessary to obtain DGAC and FAA approval, unless such work is
due to an Aircraft Interface Problem, mishandling or excessive use on
the part of AVSA or the Manufacturer.
18.3 DELAY AND NONPERFORMANCE
Any delay or failure in complying with the warranty 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 shall be the responsibility of
Northwest, to the extent that such delay or failure shall in turn,
78
(i) delay the performance of any act to be performed by or on
behalf of AVSA or the Manufacturer, or
(ii) cause the Final Contract Price of the Aircraft to be increased
by the amount of AVSA's additional reasonable and
substantiated costs, if any, attributable to such delay or
failure by Northwest, including, without limitation, storage,
taxes, insurance and costs of out-of-sequence installation,
and any resulting cost shall be borne by Northwest.
Further, in any such event, AVSA shall give written notice to
Northwest and, unless Northwest has cured such noncompliance within
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) Working Days after such notice, AVSA 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 At Northwest's request, AVSA shall be entitled to cause the
Manufacturer to purchase and install the Buyer Furnished Equipment
involved, in which event the Final Contract Price of the affected
Aircraft shall 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 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) 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 the FAA within (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)days after the date
specified by the Manufacturer for the delivery of such Buyer
Furnished Equipment, then, notwithstanding the terms of Subclause
2.3, AVSA shall be entitled to deliver the affected Aircraft where it
is then located with no obligation to install such Buyer Furnished
Equipment. Upon such delivery AVSA shall 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
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES
79
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)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 the FAA within
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)days after the date specified by the
Manufacturer for the delivery of such Buyer Furnished Equipment, then
AVSA shall be entitled to deliver the Aircraft with no obligation to
install such Buyer Furnished Equipment. Northwest may also elect to
have the Aircraft so delivered, whereupon AVSA shall be relieved of
all obligations to install such Buyer Furnished Equipment.
18.4 Any Buyer Furnished Equipment installed on an Aircraft and
subsequently removed due to the fault of Northwest shall be removed
at Northwest's expense.
18.5 TAX-FREE ZONES
Northwest shall cause all Buyer Furnished Equipment to be delivered
at its own expense to the following address, unless AVSA notifies
Northwest otherwise in writing.
For all Buyer Furnished Equipment
EADS Airbus S.A. (formerly known as Aerospatiale Matra
Airbus S.A.)
000 Xxxxx xx Xxxxxxx
00000 XXXXXXXX
XXXXXX
18.6 RISK OF LOSS
Title to and risk of loss of Buyer Furnished Equipment shall at all
times remain with Northwest. When Buyer Furnished Equipment is in the
possession of AVSA, AVSA shall have only such responsibility therefor
as is chargeable by law to a bailee for hire, but shall not be liable
for loss of use. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
18.7 AVSA-SUPPLIED BUYER FURNISHED EQUIPMENT
If Northwest requests AVSA to cause the Manufacturer to supply
directly certain items that are considered Buyer Furnished Equipment
pursuant to the Specification, and if
80
compliance with such request by AVSA and the Manufacturer in their
judgment shall not affect the delivery date of an Aircraft referred
to in Clause 9, then AVSA shall 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, AVSA shall be
entitled to the payment of a reasonable handling charge and shall
bear no liability in respect of product support commitments assumed
by the Vendor of such Buyer Furnished Equipment. The provisions of
Subclauses 18.2 and 18.3 shall apply to Buyer Furnished Equipment
covered under this Subclause 18.7 except in the event of any delay
in approval or delivery of such Buyer Furnished Equipment
attributable to the action of AVSA, the Manufacturer or the
Associated Contractor.
81
19 - ASSIGNMENT
19.1 SUCCESSORS AND ASSIGNS
Subject to the provisions of this Clause 19, this Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of the parties hereto. This Agreement and/or the rights of
either party hereunder shall not be assigned or transferred in any
manner whatsoever, in whole or in part, by either party without the
prior written consent of the other party, such consent not to be
unreasonably withheld by AVSA in the case of any assignment by
Northwest of its rights hereunder to (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
Notwithstanding anything herein to the contrary, AVSA may at any time
without Northwest's consent, assign any of its rights to receive
money and any of its duties to effect the 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 Contractor, ASCO or to any Affiliate of the Seller,
the Manufacturer or any Associated Contractor (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
19.2 AVSA'S DESIGNATIONS
AVSA may at any time by notice to Northwest designate particular
facilities or particular personnel of the Manufacturer, ASCO, 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 shall be performed. AVSA 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 AVSA for providing to Northwest all or
any of the services described in this Agreement. No such designation
shall amend or modify, and AVSA shall remain fully obligated to
perform, all of the obligations of AVSA in this Agreement.
19.3 ASSIGNMENT IN CASE OF RESALE OR LEASE
In the event of the resale or lease of any Aircraft by Northwest
following delivery thereof to Northwest, and subject to the delivery
to AVSA of reasonable financial guarantees and protections and other
terms as AVSA may reasonably require, Northwest's rights with respect
to such Aircraft solely under Clauses 12, 13 and 17 and this
Subclause 19.3 of this Agreement, shall inure to the benefit of such
purchaser or
82
lessee, as the case may be. Northwest shall furnish to AVSA 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
shall comply with all applicable terms, conditions and limitations of
this Agreement. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
19.4 FINANCING FOR PREDELIVERY Payments
Nothwithstanding the provisions of Subclause 19.1, AVSA and Northwest
will negotiate by a date no later than ninety (90) days following the
execution of this Agreement, the terms under which AVSA will consent
to the collateral assignment by Northwest of its rights and benefits
under this Agreement to the extent necessary to secure, in the
reasonable opinion of Northwest and AVSA, a financing facility to be
negotiated between Northwest and the Propulsion Systems manufacturer
under which Northwest will finance some or all of the Predelivery
Payments paid or payable by Northwest hereunder.
83
20 - DATA RETRIEVAL
On AVSA's reasonable request, Northwest shall provide AVSA with all
the necessary data, as customarily compiled by Northwest and
pertaining to the operation of the Aircraft, to assist AVSA 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.
84
21 - TERMINATION FOR CERTAIN EVENTS
21.1 Any of the following shall be considered a material breach of, as
applicable, Northwest's or AVSA's obligations under this Agreement
("Material Breach"):
(1) AVSA, Northwest or any other party shall commence any case,
proceeding or other action with respect to AVSA or Northwest
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 is not dismissed
within(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT).
(2) An action is commenced seeking the appointment of a receiver,
trustee, custodian or other similar official for AVSA or
Northwest for all or substantially all of its assets and such
action is not stayed or dismissed within (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT), or AVSA or Northwest makes a general assignment
for the benefit of its creditors.
(3) An action is commenced against AVSA or Northwest seeking
issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its
assets and such action is not dismissed within(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT).
(4) AVSA or Northwest is generally unable to pay its debts as they
come due.
(5) There is a liquidation, winding up or analogous event with
respect to Northwest or AVSA.
(6) Northwest fails to make any Predelivery Payment required to be
made pursuant to this Agreement when such payment comes due or
fails to make payment of all or part of the Final Contract
Price required to be made pursuant to Subclause 6.3 of this
Agreement.
(7) Northwest defaults on any payment of principal or interest on
any indebtedness or
85
in the payment of any guarantee obligation, to AVSA or any of
its Affiliates.
(8) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(9) Northwest defaults in its obligation to take delivery of an
Aircraft, or AVSA defaults in its obligation to deliver an
Aircraft as provided in this Agreement.
86
(10) Northwest or AVSA, or any of AVSA's affiliates, defaults in
any material respect in the observance or performance of any
other material covenant or undertaking contained in this
Agreement, and such default continues beyond the applicable
grace period (if any).
(11) AVSA or any of its Affiliates defaults in any material respect
in the observance or performance of any material covenant or
undertaking in the(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT), and such
default continues beyond the applicable grace period (if any).
21.2 In the event of any Material Breach by either party, the other party
shall at its option have the right to resort to any remedy under
applicable law, including, without limitation, the right by written
notice, effective immediately, to (i) suspend its performance under the
Agreement, (ii) in the case of a Material Breach by Northwest,
reschedule the delivery dates for Aircraft or for other goods and
services, (iii) terminate this Agreement with respect to any or all
Aircraft, services, data and other items undelivered or unfurnished on
the effective date of such termination, (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
87
22 - MISCELLANEOUS PROVISIONS
22.1 NOTICES
All notices and requests required or authorized hereunder shall be
given in writing either by personal delivery to a responsible officer
of the party to whom the same is given or by commercial courier,
certified air mail (return receipt requested), facsimile or other
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
courier, certified air mail, facsimile or other electronic
transmission, the date upon which sent, shall be deemed to be the
effective date of such notice or request.
AVSA shall be addressed at:
0, xxxx-xxxxx Xxxxxxx Xxxxxxxx
00000 XXXXXXX XXXXXX
Attention: Director - Contracts
Telephone: 00 000 00 00 00
Facsimile: 33 561 30 40 11
NORTHWEST SHALL BE ADDRESSED AT:
Treasurer
Northwest Airlines, Inc.
0000 Xxxxxxxxx Xxxxx
Xx. Xxxx, XX 00000
COURIER:
Treasurer
Northwest Airlines, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
From time to time, the party receiving the notice or request may
designate another address or another person.
88
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 shall 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 shall not constitute a waiver of any
future obligation to comply with such provision, condition or
requirement.
22.3 INTERPRETATION AND LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE
THEREOF SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS
TRANSACTION.
22.4 CONFIDENTIALITY
Subject to any legal or governmental requirements of disclosure, the
parties (which for this purpose shall include their employees, agents
and advisors) shall maintain the terms and conditions of this
Agreement and any reports or other data furnished hereunder strictly
confidential. Without limiting the generality of the foregoing,
Northwest shall use reasonable efforts to limit the disclosure of the
contents of this Agreement to the extent legally permissible in any
filing required to be made by Northwest with any governmental agency
and shall make such applications as shall be necessary to implement
the foregoing.(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) Northwest and AVSA shall 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 shall 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
shall remain in full force and effect. To
89
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 contains the entire agreement between the parties with
respect to the subject matter hereof and thereof and supersedes any
previous understanding, commitments or representations whatsoever,
whether oral or written. This Agreement shall 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 Specification, or (ii) any
other Exhibit attached to this Agreement, in each such case the terms
of such Specification or Exhibit shall prevail over the terms of this
Agreement. For the purpose of this Subclause 22.7, the term Agreement
shall not include the Specification or any other Exhibit hereto.
22.8 LANGUAGE
All correspondence, documents and any other written matters in
connection with this Agreement shall 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 shall be
an original, but all such counterparts shall together constitute but
one and the same instrument.
90
22.11 OPINION OF COUNSEL
Northwest shall, concurrently with the execution of this Agreement,
deliver to AVSA an opinion of counsel for Northwest reasonably
satisfactory to AVSA and dated as of such date to the effect that (i)
the execution, delivery and performance of this Agreement and the
A330 Product Support Agreement are within the corporate power of
Northwest, and (ii) this Agreement and the A330 Product Support
Agreement have been duly executed and delivered by and constitute
legal, valid and binding obligations of Northwest enforceable in
accordance with their terms.
91
IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
AVSA, S.A.R.L.
By: /s/ Francois Bensier
____________________________________
TITLE: AVSA Chief Executive Officer
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
TITLE: Vice President Aircraft Transactions
92
EXHIBIT A
STANDARD SPECIFICATION
The A330 Standard Specification is contained in a separate folder.
Exh. A-1
A330-300 OPTIONS SUMMARY EXHIBIT B
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Exh. B-1
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:
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:
================================================================================
Exh. C-1
================================================================================
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
--------------------------------------------------------------------------------
SCOPE OF CHANGE (FOR INFORMATION ONLY)
================================================================================
Exh. C-2
EXHIBIT D
AIRFRAME PRICE REVISION FORMULA
1. BASE PRICE
The Base Price of the Airframe is as quoted in Subclause 4.1.1 of the
Agreement.
2. BASE PERIOD
The above Base Prices have been established in accordance with the
averaged economic conditions prevailing in December 1998/January
1999/February 1999 and corresponding to theoretical delivery conditions
prevailing in January 2000 as defined by ECIb and ICb index values
indicated in Paragraph 4 of this Appendix D.
These Base Prices are 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 Appendix D.
ECIb and ICb index values indicated in Paragraph 4 of this Appendix D
will not be subject to any revision of these indexes.
3. REFERENCE INDEXES
LABOR INDEX: Published quarterly by the US Department of Labor, Bureau
of Labor Statistics, in "News" (Table 6: "Employment Cost Index for
wages and salaries for private industry workers by industry and
occupational group" (NOT SEASONALLY ADJUSTED)), or such other names
that may be from time to time used for the publication title and/or
table. The index is found under aircraft manufacturing with a standard
industrial classification code of SIC 3721 (hereinafter referred to as
"ECI-SIC-3721W") (Base month and year June 1989 = 100).
MATERIAL INDEX: Published monthly by the US Department of Labor, Bureau
of Labor Statistics, in "PPI Detailed Report" (Table 6: "Producer
prices indexes and percent changes for commodity groupings and
individual items, not seasonally adjusted"), or such other names that
may be from time to time used for the publication title and/or table.
The index is found under industrial commodities (hereinafter referred
to as "IC-Index") (Base year 1982 = 100).
Xxx. X-0
0 - XXXXXXXX XXXXXXX
Xx = (Pb + F) (0.75 ECIn/ECIb + 0.25 ICn/ICb)
Where
Pn = Revised Base Price of the Airframe at delivery of the
Aircraft.
Pb = Base Price of the Airframe at economic conditions
December 1998/January 1999/February 1999 averaged
(January 2000 delivery conditions).
F = (0.005 x N x Pb) Where N = The calendar year of
delivery of the Aircraft minus 2000.
ECIn = The arithmetic average of the latest published values
available at the date of Aircraft delivery for
ECI-SIC-3721W for the xxxx, x0xx xxx x0xx months
prior to the month of delivery of the Aircraft (1
decimal), where the quarterly value for the third
month of a quarter (March, June, September and
December) will be deemed to apply for the two
preceding months.
ECIb = ECI-SIC-3721W for December l998/January 1999/February
1999 averaged (= 139.0).
ICn = The arithmetic average of the latest published values
available at the date of Aircraft delivery for the
IC-Index for the xxxx, x0xx xxx x0xx months prior to
the month of delivery of the Aircraft (l decimal).
ICb = IC-Index for December 1998/January 1999/February 1999
averaged (=123.0).
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).
Exh. D-2
5. GENERAL PROVISIONS
5.1 SUBSTITUTION OF INDEXES
In the event that:
(i) the U.S. Department of Labor substantially revises the
methodology of calculation of any of the indexes referred to
hereabove, or
(ii) the U.S. Department of Labor discontinues, either temporarily
or permanently, any of the indexes referred to hereabove, or
(iii) the data samples used to calculate any of the indexes referred
to hereabove are substantially changed,
AVSA will select a substitute index.
Such substitute index will reflect as closely as possible the actual
variations of the wages or of the material costs, as the case may be,
used in the calculation of the original index.
As a result of this selection of a substitute index, AVSA will make an
appropriate adjustment to its price revision formula, allowing to
combine the successive utilization of the original index and of the
substitute index.
5.2 FINAL INDEX VALUES
The Revised Base Price at the date of Aircraft delivery will be final
and will not be subject to further adjustments of any kind and for any
reason to the applicable indexes as published at the date of Aircraft
delivery.
Exh. D-3
EXHIBIT E (GE)
GENERAL ELECTRIC PRICE REVISION FORMULA
l. REFERENCE PRICE
The Reference Price of the General Electric CF6-80E1-A3 Propulsion
Systems is as quoted in Subclause 4.1.2.1 of the Agreement
This Reference Price is valid for Aircraft delivered no later than
December 31, 2008, 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 E.
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
The above Reference Price has been established in accordance with
economic conditions averaged for the 11th, 12th and 13th months prior
to delivery (April 1998 theoretical delivery conditions), as defined by
General Electric by the Reference Composite Price Index of 151.09.
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 that may be
from time to time used for the publication title and/or table.
MATERIAL INDEX: "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) or such other names that may be from
time to time used for the publication title and/or table. (Base year
1982 = 100).
Exh. E. (GE)-1
4. REVISION FORMULA
Pn = Pb x CPIn/151.09
Where
Pn = Revised Reference Price the Propulsion Systems at
delivery of the Aircraft.
Pb = Reference Price as defined in Paragraph 1 of this
Exhibit X.
XXXx = Composite Price Index applicable for the month of
delivery of the Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.65 x HEn + 0.35 x ICn
Where
HEn = The arithmetic average of the HE SIC 3724 Index
available at the delivery date of the Aircraft for
the 11th, 12th and 13th months prior to the month of
delivery of the Aircraft each of which is divided by
11.16 and multiplied by 100.
ICn = The arithmetic average of the IC-Index available at
the delivery date of the Aircraft for the 11th, 12th
and 13th months prior to the month of delivery of the
Aircraft.
In each computation, if the next succeeding place is five (5) or more,
the preceding decimal place will be raised to the next higher figure.
The division of HE SIC 3724 Index by 11.16 as described in HEn above
will be rounded to the nearest third decimal place. The HE SIC 3724
Index average (HEn) and the IC-Index average (ICn) will be rounded to
the nearest second decimal place.
Each product (0.65xHEn and 0.35xICn) will be rounded to the nearest
fourth decimal place.
CPIn will be rounded to the nearest second decimal place.
Exh. E(GE)-2
The final factor (CPIn/151.09) will be rounded to the nearest third
decimal place.
After final computation, Pn will be rounded to the nearest whole
number.
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the Aircraft will be the
final price and will not be subject to further adjustments in the
indexes.
5.2 If the US Department of Labor substantially revises the methodology of
calculation of the published indexes "Standard Industrial
Classification 3724" or "Industrial Commodities" or discontinues either
of these indexes, AVSA will reflect the substitute for the revised or
discontinued index selected by General Electric, 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 and material which have occurred from
the period represented by the applicable Reference Price Indexes to the
twelfth (12) month prior to the scheduled delivery month of the
Aircraft.
5.5 Should the ratio CPIn/151.09 be lower than 1.000, then Pn will be equal
to Pb.
Exh. E(GE)-3
EXHIBIT E (PW)
XXXXX & XXXXXXX XXXXX REVISION FORMULA
1. REFERENCE PRICE
The Reference Price of the Xxxxx & Xxxxxxx XX 4168A Propulsion Systems
is as quoted in Subclause 4.1.2.2 of the Agreement.
This Reference Price is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit E.
2. REFERENCE PERIOD
The above Reference Price has been established in accordance with the
economic conditions prevailing in December 1998, as defined, according
to Xxxxx & Whitney, by the HEb and ICb index values indicated in
Paragraph 4 of this Exhibit E.
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 that may be
from time to time used for the publication title and/or table.
MATERIAL INDEX: "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) or such other names that may be from
time to time used for the publication title and/or table. (Base year
1982 = 100).
Exh. E(PW)-1
4. REVISION FORMULA
Pn = Pb x [0.65(HEn/HEb) + 0.35(ICn/ICb)]
Where
Pn = Revised Reference Price of the Propulsion Systems at
delivery of the Aircraft
Pb = Reference Price at economic conditions December 1998
HEn = HE SIC 3724 for the sixth month prior to the month of
delivery of the Aircraft
HEb = HE SIC 3724 for December 1998 (= 19.33)
ICn = IC-Index for the sixth month prior to the month of
delivery of the Aircraft
ICb = IC-Index for December 1998 (= 123.3)
In each computation, if the next succeeding place is five (5) or more
the preceding decimal place will be raised to the next higher figure.
In determining the Revised Reference Price, each quotient will be
calculated to the nearest ten thousandth (4 decimals). 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.
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the 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 Aircraft will in no
event be less than the Reference Price defined in Paragraph 1 of this
Exhibit E.
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.
Exh. E(PW)-2
5.4 If the US Department of Labor substantially revises the methodology of
calculation of the indexes referred to in this Exhibit E or
discontinues any of these indexes, AVSA will, reflect the substitute
for the revised or discontinued index selected by Xxxxx & Xxxxxxx, 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 and material, which have occurred from
the period represented by the applicable Reference Price Indexes to the
sixth month prior to the scheduled delivery of the Aircraft.
Exh. E(PW)-3
EXHIBIT E (RR)
ROLLS XXXXX XXXXX REVISION FORMULA
1. REFERENCE PRICE
The Reference Price of the Rolls Royce RB 211 Trent 772 Propulsion
Systems is as quoted in Subclause 4.1.2.3 of the Agreement.
This Reference Price is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit E.
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
The above Reference Price has been established in accordance with the
averaged economic conditions prevailing in December 1998, January 1999
and February 1999 (theoretical delivery conditions of January 2000), as
defined, according to Rolls Royce, by the HEb, MMPb and EPb index
values indicated in Paragraph 4 of this Exhibit E.
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 that may be
from time to time used for the publication title and/or table.
MATERIAL INDEX: "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) or such other names that may
be from time to time used for the publication title and/or table. (Base
year 1982 = 100).
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) or
such other names that may be from time to time used for the publication
title and/or table.
(Base year 1982 = 100).
Xxx. X(XX)-0
0. XXXXXXXX XXXXXXX
Xx = (Pb + F) x (0.60 x HEn/HEb + 0.30 x MMPn/MMPb + 0.10
x EPn/EPb)
Where
Pn = Revised Reference Price of the Propulsion Systems at
delivery of the Aircraft
Pb = Reference Price at averaged economic conditions
December 1998/January 1999/February 1999
F = (0.005 x N x Pb) Where N = the calendar year of
delivery of the Aircraft minus 2000
HEn = HE SIC 3724 for the 13th, 12th and 11th months
averaged prior to the month of delivery of the
Aircraft (rounded to the third decimal place).
HEb = HE SIC 3724 for December 1998/January 1999/February
1999 averaged (= 19.267)
MMPn = MMP-Index for the 13th, 12th and 11th months
averaged prior to the month of delivery of the
Aircraft (rounded to the second decimal place).
MMPb = MMP-Index for December 1998/January 1999/February
1999 averaged (= 123.63)
EPn = EP-Index for the 13th, 12th and 11th months
averaged prior to the month of delivery of the
Aircraft (rounded to the second decimal place).
EPb = EP-Index for averaged December 1998/January
1999/February 1999 (= 69.70)
Each quotient ((0.60 HEn)/HEb, (0.30 MMPn)/MMPb, (0.10 EPn)/EPb) will
be calculated to the nearest ten thousandth (4 decimals). If the next
succeeding decimal place is five (5) or more, the preceding decimal
place will be raised to the next higher figure.
After final computation, Pn will be rounded to the next whole number.
Exh. E(RR)-2
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the Aircraft will be the
final price and will not be subject to further adjustments in the
indexes.
5.2 If the US Department of Labor substantially revises the methodology of
calculation of the indexes referred to in this Exhibit E or
discontinues any of these indexes, AVSA will, reflect the substitute
for the revised or discontinued index selected by Rolls Royce, 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.
5.3 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 twelfth month prior to the scheduled month of delivery of the
Aircraft.
Exh. E(RR)-3
EXHIBIT F
CERTIFICATE OF ACCEPTANCE
FOR A330 AIRCRAFT
In accordance with the terms of that certain A330 Purchase Agreement dated as of
____________, between Northwest Airlines, Inc., ("NORTHWEST") and AVSA, S.A.R.L.
("AVSA") (the "Purchase Agreement"), the acceptance tests relating to the Airbus
A330 aircraft, Manufacturer's Serial Number: _____, U.S. Registration Number:
______ with two (2) [Xxxxx & Xxxxxxx XX 4168A] [General Electric
CF6-80-E1A3][Rolls Xxxxx Xxxxx 772B] series propulsion systems installed
thereon, serial nos. ______ (position #1) and _______ (position #2) (the "A330
Aircraft"), have taken place at _______________ on the ____ day of
_____________, ____.
In view of said tests having been carried out with satisfactory results,
NORTHWEST hereby approves the A330 Aircraft as being in conformity with the
provisions of the Purchase Agreement.
Said acceptance does not impair the rights of NORTHWEST that may be derived from
the warranties relating to the A330 Aircraft set forth in the Purchase
Agreement.
NORTHWEST specifically recognizes that it has waived any right it may have at
law or otherwise to revoke this acceptance of the A330 Aircraft.
RECEIPT AND ACCEPTANCE OF THE ABOVE-DESCRIBED
A330 AIRCRAFT ACKNOWLEDGED
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
_____________________________________
Its: Vice President Aircraft Transactions
____________________________________
Exh. F-1
EXHIBIT G
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
2.2 RIBS INSIDE THE WING BOX
2.3 UPPER AND LOWER PANELS OF THE WING BOX
2.4 FITTINGS
2.4.1 Attachment fittings for the flap structure
2.4.2 Attachment fittings for the engine pylons
2.4.3 Attachment fittings for the main landing gear
2.4.4 Attachment fittings for the center wing box
2.5 AUXILIARY SUPPORT STRUCTURE
2.5.1 FOR THE SLATS:
2.5.1.1 Ribs supporting the track rollers on wing box structure
2.5.1.2 Ribs supporting the actuators on wing box structure
2.5.2 FOR THE AILERONS:
2.5.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.5.2.2 Actuator fittings on wing box rear spar or shroud box
2.5.3 FOR AIRBRAKES, SPOILERS, LIFT DUMPERS:
2.5.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
Exh. G-1
2.5.3.2 Actuator fittings on wing box rear spar or shroud box
3. FUSELAGE
3.1 FUSELAGE STRUCTURE
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding the main and nose
gear wheel well and center wing box
3.1.3 Skins with doublers, stringers and frames from the forward
pressure bulkheads to the frame supporting the rear attachment of
horizontal stabilizer
3.1.4 Window and windscreen attachment structure but excluding
transparencies
3.1.5 Passenger and cargo doors internal structure
3.1.6 Xxxxx excluding scuff plates and upper beams surrounding passenger
and cargo door apertures
3.1.7 Cockpit floor structure and passenger cabin floor beams excluding
floor panels and seat rails
3.1.8 Keel beam structure
3.2 FITTINGS
3.2.1 Landing gear attachment fittings
3.2.2 Support structure and attachment fittings for the vertical and
horizontal stabilizers
Exh. G-2
4. STABILIZERS
4.1 HORIZONTAL STABILIZER MAIN STRUCTURAL BOX
4.1.1 Spars
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
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.
Exh. G-3
EXHIBIT H
XXXX OF SALE
FOR A330 AIRCRAFT
Know all persons by these presents that AVSA, S.A.R.L. ("AVSA"), a SOCIETE A
RESPONSABILITE LIMITEE organized and existing under the laws of the Republic of
France,whose address is 2 rond-point Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx, XXXXXX, is
the owner of the title to the following airframe (the "AIRFRAME"), the attached
engines as specified (the "ENGINES") and all appliances, components, parts,
instruments, accessories, furnishings, modules and other equipment of any
nature, excluding buyer furnished equipment, incorporated therein, installed
thereon or attached thereto on the date hereof (the "PARTS"):
MANUFACTURER OF AIRFRAME: MANUFACTURER OF ENGINES:
------------------------ ------------------------
AIRBUS INDUSTRIE G.I.E. [GENERAL ELECTRIC]
[XXXXX & XXXXXXX]
[ROLLS ROYCE]
MODEL: MODEL:
----- -----
A330-300 [CF6-80-E1A3] [PW 4168A] [TRENT 772B]
SERIAL NUMBERS:
MANUFACTURER'S --------------
SERIAL NUMBER: [ ] LH : [ ]
------------- RH : [ ]
REGISTRATION NO: [ ]
---------------
The Airframe, Engines and Parts are hereafter together referred to as the
aircraft (the "A318 AIRCRAFT").
AVSA does this ___ day of _______________ sell, transfer and deliver all of
its above described rights, title and interest to the A330 Aircraft to the
following company forever, said A330 Aircraft to be the property thereof:
NORTHWEST AIRLINES, INC. (the "Buyer")
AVSA hereby warrants to the Buyer that it has on the date hereof good and
lawful right to sell, deliver and transfer title to the A330 Aircraft to the
Buyer and that there is hereby conveyed to the Buyer on the date hereof good,
legal and valid title to the A330 Aircraft, free and clear of all liens,
claims, charges, encumbrances and rights of others.
Exh. H-1
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by
its duly authorized representative this ______ day of [ ]
AVSA, S.A.R.L.
By: Francois Bensier
Title: AVSA Chief Executive Officer
Signature: /s/ Francois Bensier
Exh. H-2
LETTER AGREEMENT NO. 1
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: PURCHASE INCENTIVES
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by
AVSA and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 1 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft provided
for in the Agreement. Capitalized terms used herein and not otherwise defined
in this Letter Agreement shall have the meanings assigned thereto in the
Agreement. The terms "herein," "hereof" and "hereunder" and words of similar
import refer to this Letter Agreement.
The parties hereto agree that this Letter Agreement shall 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 shall be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement
shall govern.
1. AVSA CREDIT MEMORANDA FOR ALL AIRCRAFT
1.1 AVSA will provide to Northwest upon delivery of each Aircraft the
credit memoranda listed below in Subparagraphs 1.1(i) through
1.1(v):
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
LA1-1
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(v) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(vi) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Hereinafter, the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)are
collectively referred to as the "AVSA Credit Memoranda."
1.2 The AVSA Credit Memoranda have been established in accordance
with January 2000 delivery conditions (dollars) and will be
revised to the actual delivery date of each Aircraft in
accordance with the Airframe Price Revision Formula set forth
in Exhibit D to the Agreement.
1.3 Each AVSA Credit Memorandum will be applied by AVSA against
the Final Contract Price of each Aircraft.
2. CREDIT MEMORANDA FOR FIRM AIRCRAFT
2.1 AVSA will provide to Northwest upon delivery of each of the
twenty-four (24) Firm Aircraft the credit memoranda listed
below in Subparagraphs 1.1(i) through 1.1(ii):
LA1-2
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
2.2 The (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT) has been established in accordance
with January 2000 delivery conditions (dollars) and will be
revised to the actual delivery date of each Aircraft in
accordance with the Airframe Price Revision Formula set forth
in Exhibit D to the Agreement. (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
2.3 Each (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT) and (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
will be applied by AVSA against the Final Contract Price of
each Firm Aircraft.
3. CREDITS AS PRICE ADJUSTMENT
AVSA and Northwest agree that credits offered to Northwest
pursuant to the provisions of this Letter Agreement are
intended to constitute an adjustment to the purchase price of
the Aircraft associated thereto. Nothing in this Letter
Agreement should be read to provide an inference as to the
characterization of credits found in clauses or paragraphs of
the Agreement other than this Letter Agreement.
4. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement
or of the
LA1-3
Agreement, this Letter Agreement and the rights and
obligations of Northwest hereunder shall not be assigned or
transferred in any manner without the prior written consent of
AVSA, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 4 shall be
void and of no force or effect.
If the foregoing correctly sets forth our understanding,
please execute the original and one (1) copy hereof in the
space provided below and return both copies to AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA1-4
LETTER AGREEMENT NO. 2
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: OPTIONS AND FLEXIBILITY
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by AVSA
and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 2 (the "Letter Agreement") certain additional
terms and conditions regarding the sale of the Aircraft provided for in the
Agreement. Capitalized terms used herein and not otherwise defined in this
Letter Agreement will have the meanings assigned thereto in the Agreement. The
terms "herein," "hereof" and "hereunder" and words of similar import refer to
this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an
integral, 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 that are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. DELIVERY SCHEDULE
Unless otherwise specifically requested by Northwest, (CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
LA2-1
2. OPTION AIRCRAFT
2.1 DELIVERY SCHEDULE
The Option Aircraft will be scheduled for delivery at the rate of two
per quarter starting in the calendar quarter immediately after the
month of delivery of the last Firm Aircraft.
2.2 OPTION EXERCISE
Northwest may exercise its option to purchase each Option Aircraft
scheduled for delivery (CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) by (i) giving written notice to
AVSA (the "Option Exercise Notice") no later than(CONFIDENTIAL MATERIAL
OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)months
prior to the (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) and (ii) concurrently with such notice, paying
AVSA any Predelivery Payments due accordance with Letter Agreement No.
8 to the Agreement. On AVSA's receipt of the Option Exercise Notice and
receipt of any Predelivery Payments due in respect of an Option
Aircraft, such Option Aircraft will be converted to a firm order and
will be deemed an "Aircraft" for all purposes of the Agreement.
2.3 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
In respect of each Option Aircraft refused by Northwest, Northwest and
AVSA will have no more rights or obligations.
3. PURCHASE RIGHT AIRCRAFT
3.1 PURCHASE RIGHT AIRCRAFT EXERCISE
3.1.1 In addition to the Option Aircraft AVSA grants Northwest the right to
purchase up to (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)additional Aircraft (the "Purchase Right
Aircraft"). On Northwest's written request, AVSA will, subject to
availability and AVSA's and the Manufacturer's industrial and
commercial constraints, offer Northwest all Available Delivery
Positions within the timeframe requested by Northwest, for a Purchase
Right Aircraft. Northwest
LA2-2
will accept any of such Available Delivery Positions by paying all
Predelivery Payments(CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT). Payment will be due within
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) Working Days of AVSA's advice regarding a
delivery position and will constitute Northwest's exercise of its
right to convert a Purchase Right Aircraft into a firmly ordered
Aircraft (a "Purchase Right Aircraft Exercise").
3.1.2 For the purpose of this Paragraph 3, the term "Available Delivery
Position(s)" in the singular or plural will mean any delivery
positions(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), it being understood that such Available
Delivery Positions will be subject to (CONFIDENTIAL MATERIAL OMMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Available Delivery
Positions pursuant to the provisions of this Letter Agreement.
3.1.3 In respect of each Purchase Right Aircraft for which AVSA has offered
Northwest Available Delivery Positions and Northwest fails to pay the
applicable Predelivery Payments, Northwest and AVSA will have no more
rights or obligations with respect to the offer of such Available
Delivery Positions in response to Northwest's current request.
3.2 APPLICABLE TERMS
On Purchase Right Aircraft Exercise, (i) the price terms that apply to
Option Aircraft will be extended to the applicable Purchase Right
Aircraft, so long as such Purchase Right Aircraft is scheduled for
delivery to Northwest before the end of(CONFIDENTIAL MATERIAL OMMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT), (ii) all other terms
and conditions in the Agreement that apply to Aircraft will apply to
such Purchase Right Aircraft, and (iii) such Purchase Right Aircraft
will be deemed to be an Aircraft.
3.3 PURCHASE RIGHT AIRCRAFT AS A340 AIRCRAFT
In the event that Northwest desires an A340-500 or A340-600 aircraft as
a Purchase Right Aircraft, it will so inform AVSA and AVSA and
Northwest willcomply with Subparagraphs 3.1 and 3.2 MUTATIS MUTANDIS,
subject to agreement between AVSA and Northwest on the terms and
conditions applicable
LA2-3
to the Converted Firm A340-500 Aircraft or Converted Firm A340-600
Aircraft defined below in Subparagraph 4.3.
4. CONVERSION
4.1 CONVERSION RIGHTS TO A330-200
AVSA grants Northwest the right to convert each Firm Aircraft starting
with the (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Firm Aircraft scheduled for delivery, each
Option Aircraft that has become an A330-300 model Aircraft as the
result of an option exercise, and each Purchase Right Aircraft that has
been converted to an Aircraft in accordance with Paragraph 3 above into
a firmly ordered A330-200 aircraft (the "Converted Firm A330-200
Aircraft"). Northwest may exercise this right by giving written notice
to AVSA no later than (CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)months prior to the first day of the
month in which the Aircraft to be converted is scheduled for delivery
(the "A330-200 Conversion Right"). The delivery position for a
Converted Firm A330-200 Aircraft will be(CONFIDENTIAL MATERIAL OMMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
4.2 CONVERSION RIGHTS TO A330-500
AVSA grants Northwest the right to convert each Option Aircraft that
has become an A330-300 model Aircraft as the result of an option
exercise and each Purchase Right Aircraft that has been converted to an
Aircraft in accordance with Paragraph 3 above into a firmly ordered
A330-500 aircraft (the "Converted Firm A330-500 Aircraft"). Northwest
may exercise this right (the "A330-500 Conversion Right") subject to
the following conditions:
(i) The A330-500 program having been launched industrially by the
Manufacturer at the time the X000-000 Xxxxxxxxxx Right is
exercised.
(ii) The A330-500 aircraft having been available for delivery by
the Manufacturer for (CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)months before
the Converted Firm A330-500 Aircraft is scheduled for
delivery.
LA2-4
(iii) Northwest's giving AVSA notice no fewer than (CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)months prior to the first day of the month in which
the Aircraft to be converted is scheduled for delivery, except
as set forth below in Subparagraph 4.2(iv).
(iv) In respect of Aircraft scheduled to be delivered within the
first year after delivery of the first A330-500 to any
customer, Northwest's giving AVSA notice no fewer than
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)months prior to the first day of the
month in which the Aircraft to be converted is scheduled for
delivery.
Subject to the conditions in this Subparagraph 4.2 (i) through (iv),
AVSA will(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), subject further to AVSA's and the
Manufacturer's industrial and commercial constraints, including
industrial sequence of engine type certification.
4.3 CONVERSION RIGHTS TO A340-500 OR A340-600
AVSA grants Northwest the right to convert (the "A340 Conversion
Rights") each Option Aircraft and each Purchase Right Aircraft that has
been converted to an Aircraft in accordance with Paragraph 3 above (an
"Exercised Purchase Right Aircraft") into an A340-500 Firm Aircraft (a
"Converted Firm A340-500 Aircraft") or an A340-600 Firm Aircraft (a
"Converted Firm A340-600 Aircraft") under the following terms:
(i) Northwest's exercising A340 Conversion Rights for Option
Aircraft scheduled for delivery(CONFIDENTIAL MATERIAL OMMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)by
giving written notice to AVSA concurrent with exercise of its
option to purchase an Option Aircraft in accordance with
Subparagraph 2.2 above. The scheduled delivery date of the
Converted Firm A340-500 Aircraft or Converted Firm A340-600
Aircraft will be(CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT), subject to
AVSA's and the Manufacturer's industrial and commercial
constraints.
XX0-0
Xxxxxxxxx'x exercise of an A340 Conversion Right for an Option
Aircraft will constitute exercise of the option to firmly
order this Option Aircraft, in accordance with Subparagraph
2.2 above
(ii) Northwest's giving written notice to AVSA no later than
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) months prior to the scheduled delivery
month of the Exercised Purchase Right Aircraft of its
intention to exercise an A340 Conversion Right and AVSA's
receiving any Predelivery Payments due in respect of a
Converted Firm A340-500 Aircraft or Converted Firm A340-600
Aircraft(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT).
(iii) Each A340 Conversion Right being subject to the agreement of
the manufacturer of the propulsion systems to be incorporated
as selected by Northwest. Northwest will indemnify AVSA for
any incremental costs imposed by the Propulsion Systems
manufacturer on AVSA, as the result of any contracts between
Northwest and the Propulsion Systems manufacturer, as a direct
result of this A340 Conversion Right.
(iv) Northwest's and AVSA's agreeing on the terms and conditions
applicable to the Converted Firm A340-500 Aircraft or
Converted Firm A340-600 Aircraft.
LA2-6
4.4 TERMS AND CONDITIONS OF A330 CONVERSION RIGHTS
The A330-200 Conversion Right and the A330-500 Conversion Right will be
referred to individually and collectively as an "A330 Conversion
Right." All terms and conditions for Aircraft which have been the
object of an A330 Conversion Right will remain the same as those terms
and conditions applicable to the Aircraft before it was converted,
except as follows:
4.4.1 Subclause 2.2 of the Agreement will be deleted in its entirety and
replaced by the following:
(i) For Converted Firm A330-200 Aircraft
QUOTE
The Converted Firm A330-200 Aircraft will be manufactured in accordance
with the A330-200 Standard Specification, Document No. G.000.02000,
Issue 3, Revision 1, dated July 17, 1998 (the "Specification"). The
Specification is annexed to Letter Agreement No. 2 as Exhibit 1 to
Appendix A. The Specification may be further modified from time to time
pursuant to the provisions of Clause 3 below.
UNQUOTE
(ii) For Converted Firm A330-500 Aircraft
QUOTE
The Converted Firm A330-500 Aircraft will be manufactured in accordance
with the A330-500 Standard Specification, Document No. TBD, Issue 1,
dated TBD (the "Specification"). The Specification will include an MTOW
of 228 metric tons and the enhanced cabin. The Specification may be
further modified from time to time pursuant to the provisions of Clause
3 below.
UNQUOTE
4.4.2 Subclauses 4.1.1 and 4.1.2 of the Purchase Agreement will be deleted in
their entirety and replaced by the following:
(i) For Converted Firm A330-200 Aircraft: Appendix A to this
Letter Agreement.
(ii) For Converted Firm A330-500 Aircraft: Appendix B to this
Letter Agreement.
LA2-7
4.4.3 Subclause 9.1 of the Agreement will be modified as appropriate.
4.4.4 Paragraphs 1 and 2 of Letter Agreement No. 1 to the Agreement will not
apply. The pricing in Appendix A to this Letter Agreement will apply.
4.4.5 The(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)to the Agreement will apply to Converted Firm
A330-200 Aircraft. (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) for the A330-500 aircraft will be developed
using the same agreed principles and will be of a similar level of
aggressiveness as the A330-300 guarantees.
4.4.6 The dispatch reliability guarantees contained in Letter Agreement No. 4
to the Agreement will apply to Converted Firm A330-200 Aircraft.
Dispatch reliability guarantees for the A330-500 aircraft will be
developed using the same agreed principles and will be of a similar
level of aggressiveness as the A330-300 guarantees.
4.4.7 The performance guarantees contained in Letter Agreement No. 5 to the
Agreement will be developed for Converted Firm A330-200 Aircraft and
Converted Firm A330-500 Aircraft using the same agreed principles and
will be of a similar level of aggressiveness as the A330-300
guarantees.
4.4.8 The terms and conditions of Letter Agreement No. 8 to the Agreement
will be modified to reflect the(CONFIDENTIAL MATERIAL OMMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT).
5. (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) RIGHTS
Northwest will have the right to request, at any time, the
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT). AVSA will endeavor to satisfy Northwest's
request consistent with (CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT). Should an (CONFIDENTIAL MATERIAL
LA2-8
OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)be
exercised, then Northwest will pay to AVSA within (CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Working
Days(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
6. (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) RIGHTS
6.1 Starting with(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(v) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA2-9
6.2 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
6.3 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
7. (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
7.1 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT
(i) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
7.2 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8. (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA2-10
(ii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
9. IRREVOCABLE EXERCISE OF FLEXIBILITY RIGHTS
The A330 Conversion Right, A340 Conversion Right,(CONFIDENTIAL MATERIAL
OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) be
referred to individually and collectively as a "Flexibility Right." A
Firm Aircraft may benefit both from a (CONFIDENTIAL MATERIAL OMMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)and a(CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT), but
otherwise no Aircraft may be the object of more than one Flexibility
Right, except that an Aircraft which has benefited from the exercise of
a (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) may also be the subject of a subsequent A330
Conversion Right or A340 Conversion Right, unless agreed otherwise
between Northwest and AVSA.
10. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder will not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this Paragraph 10
will be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return both
copies to AVSA.
LA2-11
Very truly yours, AVSA,
S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
XX0-00
XXXXXXXX A TO
LETTER AGREEMENT NO. 2
1. PRICES FOR CONVERTED FIRM A330-200 AIRCRAFT
1.1 BASE PRICE OF THE AIRFRAME
1.1.1 The Base Price of the Airframe of the Converted Firm A330-200 Aircraft
will be the sum of the Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard Airframe for the Converted Firm
A330-200 Aircraft, as defined in the A330-200 Standard
Specification set forth in Exhibit 1 hereto hereto (excluding
Buyer Furnished Equipment, Propulsion Systems and SCNs), at
delivery conditions prevailing in January 2000, which is:
US$(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars--(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)), and
(ii) the Base Price of SCNs covering options selected by Northwest
from Exhibit 2 hereto, as it may be supplemented, which, at
delivery conditions prevailing in January 2000, is estimated
at:
US$--(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(US dollars--(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)).
1.1.2 The Base Price of the Airframe of each Converted Firm A330-200 Aircraft
will be revised to the actual delivery date of such Converted Firm
A330-200 Aircraft in accordance with the Airframe Price Revision
Formula set forth in Subclause 5.1 of the Agreement.
1.2 BASE PRICE OF THE PROPULSION SYSTEMS
NWA - A330 - PA
APPENDIX A TO
LETTER AGREEMENT NO. 2
The Base Price of the Propulsion Systems is set forth in Subclause
4.1.2 of the Agreement.
2. PURCHASE INCENTIVES
2.1 AVSA will provide to Northwest upon delivery of each applicable
Converted Firm A330-200 Aircraft the credit memoranda listed below in
Subparagraphs 2.1(i) to 2.1(vi), inclusive.
(i) for all Converted Firm A330-200 Aircraft, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(ii) for all Converted Firm A330-200 Aircraft, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(iii) for all Converted Firm A330-200 Aircraft, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(iv) for all Converted Firm A330-200 Aircraft, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(v) for all Converted Firm A330-200 Aircraft, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(vi) for all Converted Firm A330-200 Aircraft, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(vii) for each Converted Firm A330-200 Aircraft converted from Firm
Aircraft, (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
NWA - A330 - PA
APPENDIX A TO
LETTER AGREEMENT NO. 2
(viii) for each Converted Firm A330-200 Aircraft converted from Firm
Aircraft, (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
Hereinafter, the (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) are collectively referred to as the "Converted
Firm A330-200 Aircraft Credit Memoranda."
2.2 The Converted Firm A330-200 Aircraft Credit Memoranda have been
established in accordance with January 2000 delivery conditions
(dollars) and will be revised to the actual delivery date of each
Converted Firm A330-200 Aircraft in accordance with the Airframe Price
Revision Formula set forth in Exhibit D to the Agreement.
2.3 The Converted Firm A330-200 Aircraft Credit Memoranda will be applied
by AVSA against the Final Contract Price of each Converted Firm
A330-200 Aircraft.
3. CREDITS AS PRICE ADJUSTMENT
AVSA and Northwest agree that credits offered to Northwest pursuant to
the provisions of this Letter Agreement are intended to constitute an
adjustment to the purchase price of the Aircraft associated thereto.
Nothing in this Letter Agreement should be read to provide an inference
as to the characterization of credits found in clauses or paragraphs of
the Agreement other than this Letter Agreement.
EXHIBIT 1
STANDARD SPECIFICATION
The A330-200 Standard Specification is contained in a separate folder.
NWA - A330 - PA
APPENDIX A TO
LETTER AGREEMENT NO. 2
EXHIBIT 2
For the A330-200 option summary, see Exhibit B to the Agreement.
NWA - A330 - PA
APPENDIX B TO
LETTER AGREEMENT NO. 2
1. PRICES FOR CONVERTED FIRM A330-500 AIRCRAFT
1.1 BASE PRICE OF THE AIRFRAME
1.1.1 The Base Price of the Airframe will be the sum of the Base Prices set
forth below in (i) and (ii):
(i) the Base Price of the Standard Airframe for the Converted Firm
A330-500 Aircraft, as defined in the A330-500 Standard
Specification set forth in Exhibit 1 hereto (excluding Buyer
Furnished Equipment, Propulsion Systems and SCNs), at delivery
conditions prevailing in January 2000, which is:
US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars--(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)), and
(ii) the Base Price of SCNs covering options selected by Northwest
from Exhibit 2 hereto, as it may be supplemented, which, at
delivery conditions prevailing in January 2000, is estimated
at:
US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(US dollars--(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)).
1.1.2 The Base Price of the Airframe of each Converted Firm A330-500 Aircraft
will be revised to the actual delivery date of such Converted Firm
A330-500 Aircraft in accordance with the Airframe Price Revision
Formula set forth in Subclause 5.1 of the Agreement.
1.2 BASE PRICE OF THE PROPULSION SYSTEMS
The Converted Firm A330-500 Aircraft will be equipped with either the
General Electric CF6-80E1A2, Xxxxx & Xxxxxxx XX 4164 or Rolls Xxxxx
Xxxxx 768 propulsion systems (each the "A330-500 Propulsion Systems").
1.2.1 The Base Price of the CF6-80E1A2 propulsion system and additional
standard equipment at delivery conditions prevailing in January 2000
is:
US$ (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars--(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) ).
Said Base Price has been calculated with reference to the Reference
Price indicated by General Electric of US$ 22,665,150 (US
dollars--twenty-two million six hundred sixty-five thousand one hundred
fifty) in accordance with delivery conditions prevailing in April 1998
(CPI 151.09).
Said Reference Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the General Electric Price Revision
Formula set forth in Subclause 5.2 of the Agreement.
1.2.2 The Base Price of the Xxxxx & Xxxxxxx XX 4164 propulsion systems and
additional standard equipment at delivery conditions prevailing in
January 2000 is:
US$ (CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars--(CONFIDENTIAL MATERIAL OMMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT))
Said Base Price has been calculated with reference to the Reference
Price indicated by Xxxxx & Whitney of US$ 22,554,480 (US
dollars--twenty-two million five hundred fifty-four thousand four
hundred eighty) in accordance with economic conditions prevailing in
December 1998.
Said Reference Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the Xxxxx & Xxxxxxx Revision Formula
set forth in Subclause 5.2 hereto.
1.2.3 The Base Price of the Rolls Xxxxx Xxxxx 768 propulsion systems and
additional standard equipment at delivery conditions prevailing in
January 2000 is:
US$ (CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(US dollars--(CONFIDENTIAL MATERIAL OMMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT))
Said Base Price has been calculated with reference to the Reference
Price indicated by Rolls Royce of US$ 20,577,330 (US dollars--twenty
million five hundred seventy-seven thousand three hundred thirty) in
accordance with delivery conditions prevailing in January 1994.
Said Reference Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the Rolls Royce Revision Formula set
forth in Subclause 5.2 hereto.
1.2.4 VALIDITY OF PROPULSION SYSTEMS PRICES
It is understood that the prices cited above and the price revision
formula referred to in Subparagraph 2.3 concerning the A330-500
Propulsion Systems and related equipment are based on information
received from the A330-500 Propulsion Systems manufacturer and remain
subject to any modifications that might be communicated by the A330-500
Propulsion Systems manufacturer to the Seller, the Manufacturer and/or
the Buyer.
2. PURCHASE INCENTIVES
2.1 AVSA will provide to Northwest upon delivery of each applicable
Converted Firm A330-500 Aircraft the credit memoranda listed below in
Subparagraphs 2.1(i) to 2.1(iii), inclusive.
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Hereinafter, the (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) are collectively referred to as the "Converted
Firm A330-500 Aircraft Credit Memoranda."
2.2 The Converted Firm A330-500 Aircraft Credit Memoranda have been
established in accordance with January 2000 delivery conditions
(dollars) and will be revised to the actual delivery date of each
applicable Converted Firm A330-500 Aircraft in accordance with the
Airframe Price Revision Formula set forth in Exhibit D to the
Agreement.
2.3 The Converted Firm A330-500 Aircraft Credit Memoranda will be applied
by AVSA against the Final Contract Price of each Converted Firm
A330-500 Aircraft.
3. CREDITS AS PRICE ADJUSTMENT
AVSA and Northwest agree that credits offered to Northwest pursuant to
the provisions of this Letter Agreement are intended to constitute an
adjustment to the purchase price of the Aircraft associated thereto.
Nothing in this Letter Agreement should be read to provide an inference
as to the characterization of credits found in clauses or paragraphs of
the Agreement other than this Letter Agreement.
EXHIBIT 1
STANDARD SPECIFICATION
The A330-500 Standard Specification will be provided when available.
EXHIBIT 2
The A330-500 option summary will be generally in line with Exhibit B to the
Agreement.
LETTER AGREEMENT NO. 3
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
RE: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) GUARANTEE
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest") and AVSA, S.A.R.L. ("AVSA"),
have entered into an A330 Purchase Agreement, dated as of even date herewith
(the "Agreement"), which covers, among other matters, the sale by AVSA and the
purchase by Northwest of certain Aircraft, under the terms and conditions set
forth in said Agreement. Northwest and AVSA 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 shall 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 shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
AVSA represents and warrants that the Manufacturer has provided to AVSA
the following (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) guarantees with respect to the Aircraft, subject to the terms,
conditions, limitations and restrictions all as hereinafter set out, and that
such guarantees are in full force and effect and have not been amended. AVSA
hereby assigns to Northwest and Northwest hereby accepts, all of AVSA's rights
and obligations as the "Buyer" under the said performance guarantees, and AVSA
subrogates Northwest to all such rights and obligations in respect of the
Aircraft. AVSA hereby warrants to Northwest that (i) it has all the requisite
authority to make the foregoing assignment to and effect the foregoing
subrogation in favor of Northwest, (ii) such
LA3-1
assignment and subrogation are effective to confer on Northwest all of the
foregoing rights and obligations of AVSA, and (iii) AVSA shall not enter into
any amendment of the provisions so assigned or subrogated without the prior
written consent of Northwest.
It is understood that, in the provisions below between the words QUOTE
and UNQUOTE, capitalized terms have the meanings assigned thereto in this
Agreement, except that (i) the term "Seller," which means the Manufacturer as
between the Manufacturer and AVSA, also means the Manufacturer in this
Agreement, and (ii) the term "Buyer," which means AVSA as between the
Manufacturer and the Seller, means Northwest.
QUOTE
1. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
2. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
3. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
4. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
UNQUOTE
THIS LETTER AGREEMENT SETS FORTH THE EXCLUSIVE GUARANTEES, WARRANTIES,
EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF AVSA, AND THE
EXCLUSIVE REMEDIES AVAILABLE TO NORTHWEST, ARISING FROM (BUT SOLELY TO
THE EXTENT ARISING FROM) ANY FAILURE OF ANY AIRCRAFT (AS SUCH TERM IS
DEFINED IN THIS LETTER AGREEMENT) TO DEMONSTRATE COMPLIANCE WITH ANY OF
THE GUARANTEES SET FORTH IN THIS LETTER AGREEMENT, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING
OR USAGE OF TRADE, ANY OBLIGATION OR LIABILITY OF AVSA OR ANY RIGHT,
CLAIM OR REMEDY OF NORTHWEST IN CONTRACT OR IN TORT, WHETHER OR NOT
ARISING FROM AVSA'S NEGLIGENCE, ACTUAL OR IMPUTED, INTENTIONAL ACT, OR
STRICT LIABILITY AND ANY OBLIGATION OR LIABILITY OF AVSA OR ANY RIGHT,
CLAIM OR REMEDY OF NORTHWEST FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART, FOR LOSS OF USE, REVENUE OR
PROFIT WITH RESPECT TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR
PART, OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
PROVIDED THAT IN THE EVENT THAT ANY OF THE AFORESAID
LA3-2
PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE
INEFFECTIVE THE REMAINDER OF THIS PARAGRAPH SHALL REMAIN IN FULL FORCE
AND EFFECT AND PROVIDED, FURTHER, THAT NOTHING IN THIS LETTER AGREEMENT
SHALL BE DEEMED TO MODIFY, SETTLE, COMPROMISE, LIMIT, RELEASE OR
OTHERWISE AFFECT ANY OTHER CLAIM, RIGHT OR REMEDY OF NORTHWEST AGAINST
AVSA OR THE MANUFACTURER. THE GUARANTEES SET FORTH IN THIS LETTER
AGREEMENT SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY AVSA AND NORTHWEST.
ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this paragraph shall
be void and of no force or effect.
LA3-3
If the foregoing correctly sets forth our understanding, please execute the
original and one (1) copy hereof in the space provided below and return a copy
to AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA3-4
LETTER AGREEMENT NO. 4
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: RELIABILITY GUARANTEES
Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest") and AVSA, S.A.R.L. ("AVSA"), have
entered into an A330 Purchase Agreement, dated as of even date herewith (the
"Agreement"), which covers, among other matters, the sale by AVSA and the
purchase by Northwest of certain Aircraft, under the terms and conditions set
forth in said Agreement. Northwest and AVSA 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 shall 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 shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
AVSA represents and warrants that the Manufacturer has provided to AVSA
the following reliability guarantees with respect to the Aircraft, subject to
the terms, conditions, limitations and restrictions all as hereinafter set out,
and that such guarantees are in full force and effect and have not been amended.
AVSA hereby assigns to Northwest and Northwest hereby accepts, all of AVSA's
rights and obligations as the "Buyer" under the said performance guarantees, and
AVSA subrogates Northwest to all such rights and obligations in respect of the
Aircraft. AVSA hereby warrants to Northwest that (i) it has all the requisite
authority to make the foregoing assignment to and effect the foregoing
subrogation in favor of Northwest, (ii) such
LA4-1
assignment and subrogation are effective to confer on Northwest all of the
foregoing rights and obligations of AVSA, and (iii) AVSA shall not enter into
any amendment of the provisions so assigned or subrogated without the prior
written consent of Northwest.
It is understood that, in the provisions below between the words QUOTE and
UNQUOTE, capitalized terms have the meanings assigned thereto in this Agreement,
except that (i) the term "Seller," which means the Manufacturer as between the
Manufacturer and AVSA, also means the Manufacturer in this Agreement, and (ii)
the term "Buyer," which means AVSA as between the Manufacturer and the Seller,
means Northwest.
QUOTE
1. SCOPE, COMMENCEMENT, DURATION
The guarantees relating to Achieved ODI Performance, Achieved On-Time
Performance, Achieved 30-Minute On-Time Performance and Completion Factor
(as such terms are defined in Subparagraphs 2.1, 2.2, 2.3 and 2.8)
contained in this Letter Agreement (the "Guarantees") extend to the fleet
of Aircraft. The Guarantees shall commence with delivery of the first
Aircraft and (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT).
2. DEFINITIONS
Definitions are listed below in alphabetical order.
2.1 ACHIEVED ODI PERFORMANCE
"Achieved ODI Performance" shall be computed as of the end of each
calendar quarter (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as follows:
Total number of Scheduled Departures
Achieved ODI with ODI Events in the
Performance = previous four (4) calendar quarters
-----------------------------------
The total number of Scheduled Departures
in the previous four (4) calendar quarters
2.2 ACHIEVED ON-TIME PERFORMANCE
"Achieved On-Time Performance," expressed as a percentage, shall be
computed as of the end of each calendar quarter(CONFIDENTIAL MATERIAL
OMMITTED AND
LA4-2
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) as follows:
Total number of Scheduled
Achieved Departures without
On-Time = Chargeable Events during the
Performance previous four (4) calendar quarters X 100
-----------------------------------
Total number of Scheduled Departures
during the previous four (4) calendar
quarters
2.3 ACHIEVED 30-MINUTE ON-TIME PERFORMANCE
"Achieved 30-Minute On-Time Performance," expressed as a percentage, shall
be computed as of the end of each calendar quarter (CONFIDENTIAL MATERIAL
OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) as follows:
Total number of Scheduled
Achieved Departures without
30-Minute = 30-Minute Chargeable Events during
On-Time the previous four (4) calendar quarters X 100
Performance ---------------------------------------
Total number of Scheduled Departures
during the previous four (4) calendar
quarters
2.4 ANNUAL ASSESSMENT QUARTER
An "Annual Assessment Quarter" shall be each fourth consecutive calendar
quarter(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT).
2.5 CANCELLATION EVENT
A "Cancellation Event" shall be deemed to have occurred when an Aircraft
does not complete the scheduled arrival of a Scheduled Departure for any
reason described in any of the Codes that start with "X."
2.6 CHARGEABLE EVENT/30-MINUTE CHARGEABLE EVENT
A "Chargeable Event" shall be deemed to have occurred when an Aircraft
does not leave
LA4-3
the gate within one (1) minute after its scheduled departure time for any
Buyer delay code reason listed in the Codes.
A "30-Minute Chargeable Event" shall be deemed to have occurred when an
Aircraft does not leave the gate within thirty (30) minutes after its
scheduled departure time because of any Buyer delay code reason listed in
the Codes.
2.7 CODES
"Codes" shall be deemed the Buyer delay codes defined in Northwest
Airlines' System Delay Code Bulletin dated November 17, 1999. These Codes
may be changed(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), provided, however, that material changes in the
Codes shall be mutually agreed between the Buyer and the Seller.
Included Codes:
CIM - RESET / RECYCLE / EXERCISE COMPONENTS
DFM - DEFERRAL
EQM - EQUIPMENT CHANGE DUE TO MECHANICAL MALFUNCTION
IRM - IRREGULAR ROUTING - MAINTENANCE
LQM - LATE EQUIPMENT - MAINTENANCE
MTM - MECHANICAL MALFUNCTION
NOM - MAINTENANCE - CHECKED OK
RBM - RETURN TO GATE DUE TO MAINTENANCE
XMM - XXX/CDL DEFERRAL
XOM - MAINTENANCE - CHECKED OK
XTM - MECHANICAL MALFUNCTION
The following codes shall also be included where the Buyer can reasonably
demonstrate that the root cause of the Chargeable Event, 30-Minute
Chargeable Event or Cancellation Event was in the Aircraft or Aircraft
systems.
ADM - AIRCRAFT DAMAGE
CDM - CARGO LOADING SYSTEM INOP
EIM - ENGINEERING INSPECTION
PBM - PART(S) UNSERVICEABLE
VEM - PASSENGER COMM/ENTERTAINMENT EQUIP
XDM - AIRCRAFT DAMAGE/MAINTENANCE
XLM - LINE MAINTENANCE
XPM - PART(S) UNSERVICEABLE
LA4-4
XQM - EQUIPMENT MAINTENANCE
2.8 COMPLETION FACTOR
"Completion Factor," expressed as a percentage, shall be computed as of
the end of each calendar quarter (CONFIDENTIAL MATERIAL OMMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)as follows:
Total number of Scheduled
Departures without
Cancellation Events during the
Completion Factor = previous four (4) calendar quarters X 100
-----------------------------------
Total number of Scheduled Departures
during the previous four (4) calendar
quarters
2.9 EXCLUSIONS
The following shall not be counted as Chargeable Events, 30-Minute
Chargeable Events, Cancellation Events or, notwithstanding Subparagraph
2.10, as ODI Events:
(i) Repetitive delays, cancellations or operational difficulties that
occur as a result of failure to apply correct trouble shooting
procedures in accordance with the Trouble Shooting Manual.
(ii) Repetitive delays, cancellations or operational difficulties
attributable to the Propulsion Systems, except where the Buyer can
reasonably demonstrate that the root cause of the Chargeable Event,
30-Minute Chargeable Event, Cancellation Event or ODI Event was in
the Aircraft or systems of the Aircraft.
2.10 ODI EVENT
An "ODI Event" shall mean, with respect to any Scheduled Departure, the
occurrence of any operational difficulty incident described in the ODI
Categories and Definitions dated December 23, 1999 (SEE Exhibit A attached
hereto). These ODI Categories and Definitions may be changed(CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT), provided,
however, that material changes in the ODI Categories and Definitions shall
be mutually agreed between the Buyer and the Seller.
2.11 SCHEDULED DEPARTURE
LA4-5
A "Scheduled Departure" is a departure of an Aircraft as set forth in the
Buyer's time table, and any scheduled charter flight of an Aircraft.
3. GUARANTEES
The Guarantees are listed below in alphabetical order.
3.1 ACHIEVED ODI PERFORMANCE GUARANTEE
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
3.2 ACHIEVED ON-TIME PERFORMANCE GUARANTEE
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
3.3 ACHIEVED 30-MINUTE ON-TIME PERFORMANCE GUARANTEE
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
3.4 COMPLETION FACTOR GUARANTEE
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
4. BUYER'S AND SELLER'S OBLIGATION
4.1 BUYER'S AND SELLER'S OBLIGATIONS
The Buyer's and Seller's specialists shall meet, not later than six (6)
months before delivery of the first Aircraft, to mutually agree on the
details of the appropriate electronic data interface (EDI) reporting
procedure(s) for the Guarantees.
4.2 BUYER'S OBLIGATIONS
(i) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
LA4-6
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)(a)(b)
(iii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
4.3 SELLER'S OBLIGATIONS
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT),
the Seller shall provide technical and operational analyses of delays and
cancellations and shall develop corrections intended to reduce delays,
and, in the event that the Achieved On-Time Performance, the Achieved
30-Minute On-Time Performance or the Completion Factor falls below (or the
Achieved ODI Performance exceeds) the guaranteed levels set forth in
Paragraph 3 herein, the Seller shall, not later than six (6) months after
notification by the Buyer and at no charge to the Buyer:
(i) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA4-7
(v) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
5. SUSPENSION AND ADJUSTMENT
5.1 SUSPENSION OF GUARANTEES
The remedies in Subparagraph 8.1 for each of the following Guarantees
shall be suspended with respect to any Annual Assessment Quarter when the
following occurs:
(i) Achieved ODI Performance, when Achieved ODI Performance as of the
end of such Annual Assessment Quarter is above (CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)cycles.
(ii) Achieved On-Time Performance, when Achieved On-Time Performance as
of the end of such Annual Assessment Quarter is below (CONFIDENTIAL
MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(iii) Achieved 30-Minute On-Time Performance, when Achieved 30-Minute
On-Time Performance as of the end of such Annual Assessment Quarter
is below (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
(iv) Completion Factor, when Completion Factor as of the end of such
Annual Assessment Quarter is below (CONFIDENTIAL MATERIAL OMMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
However, if subsequent investigations show that the root cause of a
failure to meet the applicable Guarantee was in the Aircraft or Aircraft
systems, then(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
The obligations of the Seller described above in Subparagraph 4.3 shall
remain in force
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during any suspension.
5.2 ADJUSTMENT OF GUARANTEES
The Guarantees are based on the following operational parameters:
(i) an average flight leg of eight (8) hours,
(ii) an annual average of 4950 flight hours per Aircraft.
Any significant change in the operational parameters above implemented by
the Buyer or any significant certification or regulatory change that has a
material adverse effect on the operational characteristics of the Aircraft
shall be cause for reevaluation or adjustment of the guaranteed levels set
forth in Paragraph 3, by mutual agreement between the Buyer and the
Seller.
6. REVIEW MEETINGS
6.1 SPECIALISTS' REVIEW MEETING
A review meeting between the Seller's and the Buyer's representatives
shall be scheduled at the end of each six (6) month period during the
Term, or at more frequent intervals to be mutually agreed. Representatives
of the Buyer and the Seller shall participate in the meeting and shall:
(i) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
6.2 RELIABILITY CONTROL BOARD
XX0-0
Xx the Buyer's request, in each meeting of the Buyer's Reliability Control
Board at which the Aircraft is being evaluated, the Seller shall make a
presentation including a description of the corrective actions which the
Seller is making available to the Buyer in connection with any shortfall
under the Guarantees.
7. LIABILITY LIMITATION
The Seller's liability for failure to meet the Guarantees shall be
governed solely by the terms hereof.
8. (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
8.1 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8.2 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
8.3 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
LA4-10
8.4 (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
UNQUOTE
THIS LETTER AGREEMENT SETS FORTH THE EXCLUSIVE GUARANTEES, WARRANTIES,
EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF AVSA, AND THE EXCLUSIVE
REMEDIES AVAILABLE TO NORTHWEST, ARISING FROM (BUT SOLELY TO THE EXTENT
ARISING FROM) ANY FAILURE OF ANY AIRCRAFT (AS SUCH TERM IS DEFINED IN THIS
LETTER AGREEMENT) TO DEMONSTRATE COMPLIANCE WITH ANY OF THE GUARANTEES SET
FORTH IN THIS LETTER AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS, ANY IMPLIED WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ANY OBLIGATION
OR LIABILITY OF AVSA OR ANY RIGHT, CLAIM OR REMEDY OF NORTHWEST IN
CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM AVSA'S NEGLIGENCE, ACTUAL
OR IMPUTED, INTENTIONAL ACT, OR STRICT LIABILITY AND ANY OBLIGATION OR
LIABILITY OF AVSA OR ANY RIGHT, CLAIM OR REMEDY OF NORTHWEST FOR LOSS OF
OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART, FOR
LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART, OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, 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 PARAGRAPH SHALL REMAIN IN FULL FORCE AND
EFFECT AND PROVIDED, FURTHER, THAT NOTHING IN THIS LETTER AGREEMENT SHALL
BE DEEMED TO MODIFY, SETTLE, COMPROMISE, LIMIT, RELEASE OR OTHERWISE
AFFECT ANY OTHER CLAIM, RIGHT OR REMEDY OF NORTHWEST AGAINST AVSA OR THE
MANUFACTURER. THE GUARANTEES SET FORTH IN THIS LETTER AGREEMENT SHALL NOT
BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY
AVSA AND NORTHWEST.
ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment or
transfer in contravention of the provisions of this paragraph shall be
void and of no force or effect.
LA4-11
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 AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA4-12
EXHIBIT A
ODI CATEGORIES AND DEFINITIONS
The ODI categories and definitions, are listed below.
1) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
2) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
3) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT
4) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
5) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
6) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
7) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
LA4,App.A-1
9) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
10) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA4,App.A-2
LETTER AGREEMENT NO. 5A
As of December 21, 2000
Northwest Airlines, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: PERFORMANCE GUARANTEES FOR GENERAL ELECTRIC POWERED AIRCRAFT
Ladies and Gentlemen:
Northwest Airlines, Inc., ("Northwest") and AVSA, S.A.R.L., ("Seller"),
have entered into an A330 Purchase Agreement, dated as of even date herewith
(the "Agreement"), which covers, among other matters, the sale by Seller and the
purchase by Northwest of certain Aircraft, under the terms and conditions set
forth in said Agreement. Northwest and Seller have agreed to set forth in this
Letter Agreement No. 5A (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 shall 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 shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
AVSA represents and warrants that the Manufacturer has provided to AVSA
the following performance guarantees with respect to the Aircraft, subject to
the terms, conditions, limitations and restrictions all as hereinafter set out,
and that such guarantees are in full force and effect and have not been amended.
AVSA hereby assigns to Northwest and Northwest hereby accepts, all of AVSA's
rights and obligations as the "Buyer" under the said performance guarantees and
AVSA subrogates Northwest to all such rights and obligations in respect of the
Aircraft. AVSA hereby warrants to Northwest that (i) it has all the requisite
authority to make the foregoing assignment to and effect the foregoing
subrogation in favor of Northwest, (ii) such assignment and subrogation are
effective to confer on Northwest all of the foregoing rights and obligations of
AVSA, and (iii) AVSA shall not enter into any amendment of the provisions so
assigned or subrogated without the prior written consent of Northwest.
It is understood that, in the provisions below between the words QUOTE
and UNQUOTE, capitalized terms have the meanings assigned thereto in this
Agreement, except that (i) the term "Seller," which means the Manufacturer as
between the Manufacturer and AVSA, also means the Manufacturer in this
Agreement, and (ii) the term "Buyer," which means AVSA as between the
Manufacturer and the Seller, means Northwest.
LA5A (GE)-1
QUOTE
PART A A330-300 PERFORMANCE GUARANTEES
PREAMBLE
A. Assumptions:
The guarantees defined below in this Part A are applicable at the
time of delivery to each A330-300 as described in the A330-300
Standard Specification Ref. G 000 03000 Issue 6 Revision 1, dated
15th July 1998, amended by Specification Change Notices ("SCN")
for:
i) increase of design weights
Maximum Taxi Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Takeoff Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Landing Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Zero Fuel Weight: (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
ii) fitting of either:
(x) General Electric CF6-80E1A3 engines
(y) Xxxxx and Xxxxxxx PW4168A engines with Kevlar fan case
(z) Rolls-Xxxxx Xxxxx 772B engines except where otherwise
noted.
These guarantees are comprehensive including the performance of
both the airframe and engine in combination.
For information only:
For establishing FAA certified performance these guarantees have
been based on:
(x) the FAA certified Flight Manual of the A330-200 fitted with
General Electric CF6-80E1A4 engines plus best estimated
corrections for longer fuselage of the A330-300 and higher
take-off thrust of the CF6-80E1A3 engines
(y) the FAA certified Flight Manual of the A330-300 fitted with
Xxxxx and Xxxxxxx PW4168A engines
(z) the FAA certified Flight Manual of the A330-300 fitted with
Rolls Xxxxx Xxxxx 772B engines, with, in each case, a take-off
thrust rating flat rated to 86(degree)F (ISA+15(degree)C) at sea
level.
LA5A (GE)-2
For establishing uncertified performance these guarantees have
been based on the In Flight Performance level relevant at the date
of signature of the Purchase Agreement (the "IFP Level") and
consistent with the Aircraft Performance Document (the "Orange
Book")
(x) for CF6-80E1A3 engines : ref. AI/CM-T P3302 Issue 3
(y) for PW4168A engines : ref. AI/CM-T P3322 Issue 3
(z) for Trent 772B engines : ref. AI/CM-T P3342 Issue 3
B. Definitions:
(i) For the purpose of this Part A of this Letter Agreement
only, the term "Aircraft" is defined as any and all of the
A330-300 model aircraft to be acquired by the Buyer under
the Agreement.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
1. GUARANTEED PERFORMANCE
1.1 SPEED
The level flight airspeed at an Aircraft gross weight of 460,000 pounds
at a pressure altitude of 35,000 feet using maximum cruise thrust in
ISA conditions shall not be less than a true Mach number of:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
1.2 EN-ROUTE ONE ENGINE INOPERATIVE
Each Aircraft shall meet minimum en-route climb gradient (currently
1.1%) with one engine inoperative, the other operating at the maximum
continuous thrust available at the altitude with air conditioning
bleeds on, without anti-icing, at a gross weight of pounds in the
cruise configuration in ISA conditions, at a geometric altitude of:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
LA5A (GE)-3
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
1.3 TAKE-OFF PERFORMANCE
1.3.1 The FAR permissible take-off weight shall not be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
in the following conditions (assumed representative of):
Pressure altitude: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) Ambient temperature: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Runway
length: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) Slope: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) Obstacles (8): (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
1.3.2 The FAR permissible take-off weight shall not be less than
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds in the following conditions (assumed representative
of(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)):
Pressure altitude: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Ambient temperature: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)Runway length: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Slope:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
LA5A (GE)-4
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Obstacles (11): (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANBE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
1.4 ALL ENGINE CLIMB
The time, fuel burn and distance in still air to climb from an initial
climb altitude of 1,500 feet to a final climb altitude of 35,000 feet
on a standard day, using the conditions and operating rules defined
below and using not more than maximum climb thrust, shall not be more
than the following guarantee values:
(x) for CF6-80E1A3 engines:
Time (minutes):
NOMINAL: 27.6 mn TOLERANCE: 1.0 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)mn
Fuel burn (pounds):
NOMINAL: 11,890 lb TOLERANCE: 530 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 197 nm TOLERANCE: 8 nm GUARANTEE: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nm
(y) for PW4168A engines:
Time (minutes):
NOMINAL: 33.0 mn TOLERANCE: 1.5 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) mn
Fuel burn (pounds):
NOMINAL: 13,185 lb TOLERANCE:705 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 238 nm TOLERANCE: 12 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
Time (minutes):
NOMINAL: 25.0 mn TOLERANCE: 0.8 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)mn
LA5A (GE)-5
Fuel burn (pounds):
NOMINAL: 11,110 lb TOLERANCE: 450 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 178 nm TOLERANCE: 6 nm GUARANTEE: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
Initial Conditions: A gross weight of 512,020 pounds
A speed of 250 KCAS.
The flaps and landing gear are
retracted.
Climb: The Aircraft climbs from the initial
climb altitude to 10,000 feet altitude
at 250 KCAS.
The Aircraft then accelerates to a climb
speed of 330 KCAS.
The climb continues at 330 KCAS until
0.82 Mach number is reached.
The climb continues at 0.82 Mach number
to the final climb altitude at a rate of
climb not less than 300 feet per minute.
1.5 LANDING DISTANCE
The FAR certified dry landing field length at an Aircraft gross weight
of (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)pounds at sea level pressure altitude shall not
be greater than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
2. FUEL BURN GUARANTEE
2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)AIRCRAFT SPECIFIC RANGE
The still air range expressed in nautical miles at an initial cruise altitude of
35,000 feet on a standard day at 0.82 Mach number, starting at a gross weight of
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) pounds and
consuming 140,000 pounds of fuel, and using not more than maximum cruise thrust
(except maximum climb thrust may be used during a step climb) and using the
conditions and operating rules defined below, shall not be less than the
following guarantee value for each Aircraft (the "Guaranteed (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Specific Range"):
(x) for CF6-80E1A3 engines:
LA5A (GE)-6
NOMINAL: 5,311 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(y) for PW4168A engines:
NOMINAL: 5,292 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
NOMINAL: 5,312 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
A step climb or multiple step climbs of 4,000 feet altitude may be used
when beneficial to minimize fuel burn.
2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)SPECIFIC RANGE
The still air range expressed in nautical miles at an initial cruise
altitude of 35,000 feet on a standard day at 0.82 Mach number, starting
at a gross weight of (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds and consuming 140,000 pounds
of fuel, and using not more than maximum cruise thrust (except maximum
climb thrust may be used during a step climb) and using the conditions
and operating rules defined below, shall not be less than the following
guarantee value (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)(the "Guaranteed (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Specific Range"):
(x) for CF6-80E1A3 engines:
NOMINAL: 5,311 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nm
(y) for PW4168A engines:
NOMINAL: 5,292 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
NOMINAL: 5,312 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
A step climb or multiple step climbs of 4,000 feet altitude may be used
when beneficial to minimize fuel burn.
3. MISSION PAYLOAD RANGE GUARANTEE
LA5A (GE)-7
For each Aircraft the payload for a stage length of (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nautical miles in still air
(representative of a (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) route) using the conditions and operating rules defined below, shall
not be less than the following guarantee value in pounds:
(x) for CF6-80E1A3 engines:
NOMINAL: 84,600 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
(y) for PW4168A engines:
NOMINAL: 82,900 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) lb
(z) for Trent 772B engines:
NOMINAL: 84,000 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Conditions and operating rules:
Stage The stage length is defined as the sum
Length: of the distances
for climb, cruise, and descent.
Takeoff: The airport altitude is 14 feet.
The takeoff gross weight is 513,677
pounds.
Climbout Following the takeoff to 800 feet, the
Maneuver: aircraft accelerates to 250 KCAS while
climbing to 1,500 feet above the
departure airport altitude and
retracting flaps and landing gear.
Climb: The aircraft climbs from 1,500 feet
above the departure airport altitude to
10,000 feet altitude at 250 KCAS.
The aircraft then accelerates to a climb
speed of 330 KCAS.
The climb continues at 330 KCAS until
0.82 Mach number is reached.
The climb continues at 0.82 Mach number
to the initial cruise altitude at a rate
of climb not less than 300 feet per
minute.
The temperature is standard day during
climb. Maximum climb thrust is used
during climb.
Cruise: The Aircraft cruises at 0.82 Mach
number.
The initial cruise altitude is 35,000
feet. A step climb or multiple step
climb of 4,000 feet altitude may be used
when beneficial to minimize fuel burn.
The temperature is standard day during
cruise.
LA5A (GE)-8
The cruise thrust is not to exceed
maximum cruise thrust except during a
step climb when maximum climb thrust
may be used.
Descent: The Aircraft descends from the final
cruise altitude at 0.82 Mach number
until 330 KCAS is reached.
The descent continues at 330 KCAS to an
altitude of 10,000 feet.
At that altitude the Aircraft
decelerates to 250 KCAS.
The descent continues at 250 KCAS to an
altitude of 1,500 feet above the
destination airport altitude.
Throughout the descent, the cabin
pressure will be controlled to a maximum
rate of descent equivalent to 350 feet
per minute at sea level.
The temperature is standard day during
descent.
Approach and The Aircraft decelerates to the final
Landing Maneuver: approach speed while extending landing
gear and flaps, then descends and lands.
The destination airport altitude is 841
feet.
Usable Reserve Fuel: At the end of approach and landing, an
amount of fuel corresponding to the
profile defined below shall remain in
the tanks :
FAR Reserve - 31.5 minutes hold
(representative of 30 minutes hold
with 5% xxxx-up for racetrack pattern)
at 1500ft, ISA,at actual Zero Fuel
Weight.
Alternate - alternate is assumed to be
67 NM (Rochester, MN).
Fuel burn and time include the
following:
Fuel for takeoff to operational climb
speed with 2 minutes time allowance
and no distance credit
Optimum climb airspeed for fuel
economy
Cruise at LRC at optimum altitude
Optimum descent airspeed for fuel
economy
Approach and land fuel with 5 minutes
time allowance and no distance credit
(alternate fuel will never be less than
fuel to a 15 minute alternate)
International 10% - 10 minutes of fuel
at end of cruise altitude, LRC, ISA,
actual landing weight.
Contingency (Holding) - 21 minutes hold
(representative of 20 minutes hold with
5% xxxx-up for racetrack pattern),
FL150, ISA, actual landing weight.
Fixed Allowances: For the purpose of this guarantee and
for the purpose of establishing
compliance with this guarantee, the
following shall be used as fixed
quantities and allowances:
Engine Start and Taxi-out: 800 pounds of fuel
LA5A (GE)-9
Takeoff and Climbout Maneuver: 1,650 pounds of fuel for mission
departure and 1,150 pounds of fuel for
alternate
Approach and Landing Maneuver: 420 pounds of fuel for mission and 420
pounds of fuel for alternate
Taxi-in (shall be consumed from the
reserve fuel): 500 pounds of fuel
The Operating Weight Empty (OWE) derived in Subparagraph 4.2 of this
Part A is the basis for this mission guarantee.
4. WEIGHT GUARANTEES
4.1 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty (as defined
in the A330-300 Standard Specification set forth in the Preamble) of
each Aircraft as defined in the Preamble, which will be derived from
the weighing of each Aircraft, shall not be more than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for ANY(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Aircraft
and shall not be more than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
LA5A (GE)-10
4.2 STRUCTURAL USABLE LOAD
The Seller guarantees that the excess of the Maximum Zero Fuel Weight
(as defined in the A330-300 Standard Specification set forth in the
Preamble) of each Aircraft as defined in the Preamble over the
Operating Weight Empty (as defined below) of such Aircraft, shall not
be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Aircraft
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for ANY(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Aircraft
and shall not be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Operating Weight Empty is the sum of the Manufacturer's Weight Empty
(as defined in the Type Specification set forth in the Preamble) plus
the following fixed allowances:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds for operator items
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
LA5A (GE)-11
(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator items
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds for operator items
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
5. GENERAL GUARANTEE CONDITIONS
5.1 AIRCRAFT CONFIGURATION
Seller reserves the right to make reasonable and appropriate
adjustments to the guarantees set forth in this Part A for any
configuration change or deviation from the A330-300 Standard
Specification which is agreed between Buyer and Seller subsequent to
the date hereof, provided that any such adjustment is made
contemporaneously with such A330-300 Standard Specification change or
deviation.
5.2 PERFORMANCE DEFINITIONS
5.2.1 Performance and noise certification rules will be those required to
obtain FAR certification under the FAA Airworthiness Code as defined in
the Type Specification.
5.2.2 All performance data is based on the International Standard Atmosphere
and specified variations. Unless otherwise stated all altitudes are
pressure altitudes.
5.2.3 Unless otherwise stated, take-off and landing performance is based upon
a hard, smooth, dry and level runway surface with zero wind, and
assumes no line-up allowance.
5.2.4 Take-off and landing performance is based on the brakes and tires as
specified in the aircraft configuration defined in the Preamble.
5.2.5 Devices such as flaps, landing gear, speed brakes, wheel brakes,
anti-skid and engines will be employed in the manner which provides the
best performance standard consistent with approved operations.
5.2.6 All guaranteed performance in this Part A is based upon no air bleed
from the engines for airframe or engine anti-icing.
5.2.7 For take-off and take-off climb performance, landing and landing climb
performance, no air will be bled from the engine for air conditioning.
5.2.8 For en route performance, engine bleeds consistent with normal
operation of the air conditioning system, including recirculation, are
assumed.
5.2.9 Normal electrical services will be in use consistent with the typical
load schedule given in the A330-300 Standard Specification.
LA5A (GE)-12
5.2.10 All guaranteed performance in this Part A assumes the use of approved
fuel with a Lower Heating Value (the "LHV") of 18,590 BTU/lb and with a
specific gravity of 6.7 pounds/gallon as such.
5.2.11 The speed, specific range and all-engine climb guarantees and the
climb, cruise and descent portions of the mission guarantees are based
on an Aircraft center of gravity location of 33 percent of the mean
aerodynamic chord.
5.3 COMPLIANCE
5.3.1 The Seller shall provide to Buyer a guarantee compliance report
providing the compliance data for each Aircraft (the "Guarantee
Compliance Report"), in a timely manner after final data is collected,
but in no event later than ten (10) Working Days after acceptance by
Buyer of the Aircraft. The Guarantee Compliance Report shall contain
compliance results determined in accordance with this Subparagraph 5.3.
5.3.2 Compliance with the en-route one engine inoperative, takeoff
performance and landing distance guarantees will be demonstrated with
reference to performance data contained in the approved Flight Manual.
Compliance with climb performance and speed will be demonstrated with
reference to the IFP Level.
5.3.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
a) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
c) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
d) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
e) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
f) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
5.3.4 The actual (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
LA5A (GE)-13
CONFIDENTIAL TREATMENT)Aircraft specific range, used for determining
compliance with the fuel burn and mission payload guarantees, will be
defined as the IFP Level corrected by the Correction Factor.
5.3.5 The actual (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)specific range, used for determining compliance
with the fuel burn guarantee, will be defined upon delivery of each
individual Aircraft as (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
5.3.6 Compliance with fuel burn guarantees shall be determined as follows:
(i) with respect to each Aircraft, if its actual (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft specific range meets the guarantee level set
forth in Subparagraph 2.1 of this Part A.
(ii) with respect to the(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT), if, upon delivery of
any Aircraft, the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)specific range meets the
guarantee level set forth in Subparagraph 2.2 of this Part A.
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
5.3.7 Compliance with the mission payload guarantee, as defined in Paragraph
3 of this Part A, will be based on the actual individual Aircraft
specific range as defined in Subparagraph 5.3.4 of this Part A and the
actual Manufacturer's Weight Empty of the applicable Aircraft as
determined pursuant to Subparagraph 5.3.8 of this Part A.
5.3.8 Compliance with the weight guarantees set forth in Subparagraphs 4.1
and 4.2 of this Part A shall be demonstrated in a weight compliance
report with reference to actual aircraft weighing results.
6 ADJUSTMENT OF GUARANTEES
Should any change be made to any law, governmental regulation or
requirement or interpretation thereof ("Rule Change") by any
governmental agency subsequent to the date of the Agreement, and should
such Rule Change (i) more than minimally affect the Aircraft
configuration or performance or both, and (ii) be required to obtain
the Standard Airworthiness Certificate for the Aircraft, the guarantees
set forth herein shall be appropriately modified to reflect the
effect(s) of any such Rule Change(s).
7. EXCLUSIVE GUARANTEES
The guarantees set forth in this Part A supersede any similar
guarantees from Seller that may be stated in the A330-300 Standard
Specification or any other document, except for the guarantees set
forth in Part B of this Letter Agreement.
LA5A (GE)-14
8. REMEDIES
8.1 GENERAL
8.1.1 In the event that the Seller fails to demonstrate compliance by one or
more Aircraft (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)with any of the guarantees set forth in this
Part A, the Seller shall
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8.1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.5 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.6 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2 FUEL BURN
The Compensation for failure to comply with either the guarantee set
forth in Subparagraph 2.1 or Subparagraph 2.2 of this Part A shall be
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2.1 DEFICIENCY OF (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)AIRCRAFT
In the event that an (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
LA5A (GE)-15
CONFIDENTIAL TREATMENT)Aircraft fails to comply with the
guarantee set forth in Subparagraph 2.1 of this Part A, the
amount of Compensation (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
8.2.2 DEFICIENCY OF AIRCRAFT FLEET
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)fails to
comply with the guarantee set forth in Subparagraph 2.2 of
this Part A, the amount of Compensation (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
8.3 PAYLOAD
The Compensation for failure to comply with either the guarantees set
forth in Subparagraph 1.3, Paragraph 3 or Subparagraph 4.2 of Part A of
this Letter Agreement shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
8.3.1 MISSION PAYLOAD RANGE
In the event that any Aircraft fails to meet the mission payload range
guarantee in Paragraph 3 of this Part A, the amount of Compensation
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.3.2 STRUCTURAL USABLE LOAD
In the event that any Aircraft (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)fail to meet the guarantee levels
specified in Subparagraph 4.2 of this Part A, the Compensation shall
BE(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8.3.3 TAKE-OFF
In the event that an Aircraft fails to meet the take-off guarantees set
forth in Subparagraph 1.3 of this Part A, the amount of Compensation
shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT). The amount of
LA5A (GE)-16
Compensation hereunder shall (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
8.3.4 LANDING
In the event that an Aircraft fails to meet the landing guarantee set
forth in Subparagraph 1.5 of this Part A, the amount of Compensation
shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), provided that the Buyer demonstrates to the
Seller that such deficiency adversely impacts the Buyer's operation of
the affected Aircraft.
8.4 MANUFACTURER'S WEIGHT EMPTY
In the event that the Manufacturer's Weight Empty (MWE) of an (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft or of the
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) exceeds
the guarantee levels specified in Subparagraph 4.1 of this Part A the amount of
Compensation shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT).
8.5 SPEED
In the event that an Aircraft fails to meet the speed guarantee set
forth in Subparagraph 1.1 of this Part A, the amount of Compensation
shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), subject to the limitations and conditions set
forth in Subparagraph 8.8 of this Part A, provided that the Buyer
demonstrates to the Seller that such deficiency adversely impacts the
Buyer's operation of the affected Aircraft.
8.6 ONE ENGINE INOPERATIVE
In the event that an Aircraft fails to meet the one engine inoperative
guarantee set forth in Subparagraph 1.2 of this Part A, the amount of
Compensation shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT), subject to the limitations and
conditions set forth in Subparagraph 8.8 of this Part A, provided that
the Buyer demonstrates to the Seller that such deficiency adversely
impacts the Buyer's operation of the affected Aircraft.
8.7 ALL ENGINE CLIMB
In the event that an Aircraft fails to meet the all engine climb
guarantee set forth in Subparagraph 1.4 of this Part A, the amount of
Compensation shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT), subject to the limitations and
conditions set forth in Subparagraph 8.8 of this Part A, provided that
the
LA5A(GE)-17
Buyer demonstrates to the Seller that such deficiency adversely impacts
the Buyer's operation of the affected Aircraft.
8.8 LIMITATIONS AND CONDITIONS
(i) The Seller shall have the right to review and verify data
collected by the Buyer, which is provided to Seller for Seller
to perform the calculations of Compensation due hereunder.
(ii) If at any time following delivery of an Aircraft the Seller
restores the required performance level of an Aircraft which
has initially failed to meet the performance guarantee
requirements of Paragraphs 1, 2, 3 or 4 of this Part A, and
the Seller demonstrates compliance for such specific Aircraft
in accordance with the applicable compliance provisions of
this Part A, all further payments of Compensation required
under this Part A with respect to such initial failure shall
cease and the Seller shall have no further obligation to the
Buyer under this Part A for such initial failure in respect of
such Aircraft. Seller shall demonstrate compliance
by(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), gathering data and producing a
Guarantee Compliance Report which demonstrates compliance for
such specific Aircraft in accordance with the applicable
compliance provisions of this Part A. The compliance level
achieved by such Aircraft shall be taken into account for all
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)calculations for the purposes of this
Part A.
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(v) The Seller's maximum liability (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(x) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(vi) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as aforesaid shall be deemed to settle
any and all claims and remedies of the Buyer against the
Seller under this Part A provided that the Seller has first
endeavored to restore the required performance as per
Paragraph 8.1.1(i) above, but shall not settle or modify in
any respect any other claim or remedy
LA5A(GE)-18
of the Buyer against the Seller. Nothing in this Paragraph
8.8 (vi) shall oblige the Seller to (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
LA5A(GE)-19
PART B A330-300 (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)GUARANTEES
Seller hereby extends and grants to Buyer the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)guarantees with respect to the Aircraft set forth in
this Part B of this Letter Agreement, subject to the terms,
conditions, limitations and restrictions all as hereinafter
set out.
PREAMBLE
A. Assumptions:
The guarantees defined below in this Part B are applicable to
each A330-300 Aircraft as described in the A330-300 Standard
Specification Ref. G 000 03000 Issue 6 Revision 1, dated 15th
July 1998, amended by Specification Change Notices ("SCN")
(the "Specification") for:
i) increase of design weights
Maximum Taxi Weight: (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Takeoff Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Landing Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Zero Fuel Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
ii) fitting of:
General Electric CF6-80E1A3 engines.
These guarantees are comprehensive including the performance
of both the airframe and engine in combination.
For information only:
For establishing uncertified performance these guarantees
have been based on the In Flight Performance level
relevant at the date of the signature of the Purchase
Agreement (the "IFP Level") and consistent with the
Aircraft Performance Document (the "Orange Book") ref.
AI/CM-T P3302 Issue 3.
B. Definitions:
LA5A(GE)-20
(i) For the purpose of this Part B of this Letter
Agreement only, the term "Aircraft" is defined as
any and all of the A330-300 model aircraft to be
purchased by the Buyer under the Agreement.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA5A(GE)-21
1. GENERAL PROVISIONS
1.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
1.2 The (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Guarantees in this Part B are contingent upon:
- (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(v) (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
2. FUEL BURN GUARANTEE
2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) (expressed as a percentage) determined in accordance with
the In-Flight Performance Program (IFP).
2.2 The Seller guarantees to the Buyer that the (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) shall not
be worse than the IFP Level
LA5A(GE)-22
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
3. MISSION PAYLOAD GUARANTEE
The (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) as stated in Paragraph 2.2 of this Part B shall
allow the carrying of a guaranteed payload of not less than:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
over an equivalent still air stage distance of (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)nautical miles (assumed representative of
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)for a winter operation) when operated
under the conditions described below.
a) If the (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) as stated in Subparagraph 2.2 of this
Part B is modified according to Subparagraph 1.3 of this PART B,
the above guaranteed payload shall be modified accordingly,
using the following relationship:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) Available takeoff weight is assumed to be (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds.
c) The destination airport conditions are such as to allow the
required landing weight to be used without performance
restrictions and without exceeding the Maximum Landing Weight as
defined in Type Specification referenced in the Preamble.
d) Conditions and operating rules:
Stage The stage length is defined as the sum
Length: of the distances for climb, cruise, and
descent.
Takeoff: The airport altitude is 14 feet. The
takeoff gross weight is (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)pounds.
LA5A(GE)-23
Climbout Following the takeoff to 800 feet, the
Maneuver: aircraft accelerates to 250 KCAS while
climbing to 1,500 feet above the
departure airport altitude and
retracting flaps and landing gear.
Climb: The aircraft climbs from 1,500 feet
above the departure airport altitude to
10,000 feet altitude at 250 KCAS. The
aircraft then accelerates to a climb
speed of 330 KCAS. The climb continues
at 330 KCAS until 0.82 Mach number is
reached. The climb continues at 0.82
Mach number to the initial cruise
altitude at a rate of climb not less
than 300 feet per minute. The
temperature is standard day during
climb. Maximum climb thrust is used
during climb.
Cruise: The Aircraft cruises at 0.82 Mach
number. The initial cruise altitude is
35,000 feet. A step climb or multiple
step climb of 4,000 feet altitude may be
used when beneficial to minimize fuel
burn. The temperature is standard day
during cruise. The cruise thrust is not
to exceed maximum cruise thrust except
during a step climb when maximum climb
thrust may be used.
Descent: The Aircraft descends from the final
cruise altitude at 0.82 Mach number
until 330 KCAS is reached. The descent
continues at 330 KCAS to an altitude of
10,000 feet. At that altitude the
Aircraft decelerates to 250 KCAS. The
descent continues at 250 KCAS to an
altitude of 1,500 feet above the
destination airport altitude. Throughout
the descent, the cabin pressure will be
controlled to a maximum rate of descent
equivalent to 350 feet per minute at sea
level. The temperature is standard day
during descent.
Approach and The Aircraft decelerates to the final
Landing Maneuver: approach speed while extending landing
gear and flaps, then descends and lands.
The destination airport altitude is 841
feet.
Usable Reserve Fuel: At the end of approach and landing, an
amount of fuel defined as follows shall
remain in the tanks:
FAR Reserve - 31.5 minutes hold
(representative of 30 minutes hold with
5% xxxx-up for racetrack pattern) at
1500ft, ISA,at actual Zero Fuel Weight.
Alternate - alternate is assumed to be 67 NM
(Rochester, MN). Fuel burn and time include
the following:
Fuel for takeoff to operational climb speed
with 2 minutes time allowance and no
distance credit
Optimum climb airspeed for fuel economy
Cruise at LRC at optimum altitude
LA5A(GE)-24
Optimum descent airspeed for fuel
economy Approach and land fuel with 5
minutes time allowance and no distance
credit (alternate fuel will never be less
than fuel to a 15 minute alternate)
International 10% - 10 minutes of fuel at
end of cruise altitude, LRC, ISA, actual
landing weight.
Contingency (Holding) - 21 minutes hold
(representative of 20 minutes hold with 5%
xxxx-up for racetrack pattern), FL150, ISA,
actual landing weight.
Fixed Allowances: For the purpose of this guarantee and
for the purpose of establishing
compliance with this guarantee, the
following shall be used as fixed
quantities and allowances:
Engine Start and Taxi-out: (CONFIDENTIAL
MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL
TREATMENT) pounds of fuel
Takeoff and Climbout Maneuver:
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds of fuel for mission
departure and (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) pounds of
fuel for alternate
Approach and Landing Maneuver:
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds of fuel for
mission and (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT) pounds
of fuel for alternate
Taxi-in (shall be consumed from the
reserve fuel): (CONFIDENTIAL
MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
pounds of fuel
e) The mission payload guarantee is based on an Operating Weight
Empty (OWE) composed of the actual Aircraft Fleet average
Manufacturer's Weight Empty (MWE) as
LA5A(GE)-25
demonstrated at delivery of the Aircraft Fleet (but in no event
more than (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds) plus the following
fixed allowances:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer
changes (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
for operator items (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds for in-service growth
4. GENERAL GUARANTEE CONDITIONS
4.1 AIRCRAFT CONFIGURATION
Seller reserves the right to make reasonable and appropriate
adjustments to the guarantees in this Part B for any configuration
change or deviation from the Specification which is agreed between
Buyer and Seller subsequent to the date hereof, provided that any such
adjustment is made contemporaneously with such Specification change or
deviation.
4.2 COMPLIANCE
4.2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
a) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
c) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
d) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
4.2.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA5A(GE)-26
4.2.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.5 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.6 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.7 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.8 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.9 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5. REMEDIES
5.1 GENERAL
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)exceeds the guaranteed levels set
forth in Subparagraph 2.2 of this Part B, then the Buyer and the Seller
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
5.1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.2 FUEL BURN(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)-
LA5A (GE)-27
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)fails to
comply with the guarantee set forth in Subparagraph 2.2 of
this Part B, (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
5.3 MISSION PAYLOAD RANGE
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)fails to meet the mission payload
range guarantee set forth in Paragraph 3 of this Part B, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
5.4 LIMITATIONS AND CONDITIONS
(i) The Seller shall have the right to review and verify data
collected by the Buyer, which is provided to Seller for Seller
to perform the calculations of compensation due hereunder.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) The Seller's maximum liability pursuant to (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(x) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as aforesaid shall be deemed to settle
any and all claims and remedies of the Buyer against the
Seller under this Part B (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)but shall not
settle or modify in any respect any other claim or remedy of
the Buyer against the Seller. Nothing in this Paragraph 5.4
(iv) shall (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
(v) The intent of Part B of this Letter Agreement is to provide
benefits to the Buyer as a result of the failure of the
Buyer's Aircraft to achieve the performance level stipulated
LA5A (GE)-28
in the guarantees set forth in this Part B. It is not the
intent, however, to duplicate benefits provided to the Buyer
by the Seller under Part A of this Letter Agreement as a
result of the same failure. (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
UNQUOTE
THIS LETTER AGREEMENT SETS FORTH THE EXCLUSIVE GUARANTEES, WARRANTIES,
EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF AVSA, AND THE
EXCLUSIVE REMEDIES AVAILABLE TO NORTHWEST, ARISING FROM (BUT SOLELY TO
THE EXTENT ARISING FROM) ANY FAILURE OF ANY AIRCRAFT (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)TO
DEMONSTRATE COMPLIANCE WITH ANY OF THE GUARANTEES SET FORTH IN THIS
LETTER AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS, ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ANY OBLIGATION OR
LIABILITY OF AVSA OR ANY RIGHT, CLAIM OR REMEDY OF BUYER IN CONTRACT OR
IN TORT, WHETHER OR NOT ARISING FROM SELLER'S NEGLIGENCE, ACTUAL OR
IMPUTED, INTENTIONAL ACT, OR STRICT LIABILITY AND ANY OBLIGATION OR
LIABILITY OF SELLER OR ANY RIGHT, CLAIM OR REMEDY OF BUYER FOR LOSS OF
OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART, FOR
LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART, OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, 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 PARAGRAPH SHALL REMAIN IN
FULL FORCE AND EFFECT AND PROVIDED, FURTHER, THAT NOTHING IN THIS
LETTER AGREEMENT SHALL BE DEEMED TO MODIFY, SETTLE, COMPROMISE, LIMIT,
RELEASE OR OTHERWISE AFFECT ANY OTHER CLAIM, RIGHT OR REMEDY OF
NORTHWEST AGAINST AVSA OR THE MANUFACTURER. THE GUARANTEES SET FORTH IN
THIS LETTER AGREEMENT SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT
BY A WRITTEN INSTRUMENT SIGNED BY AVSA AND NORTHWEST.
ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this paragraph shall
be void and of no force or effect.
LA5A (GE)-29
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 AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
APPENDIX 1
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA5A (GE)-30
LETTER AGREEMENT NO 5B
As of December 21, 2000
Northwest Airlines, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: PERFORMANCE GUARANTEES FOR XXXXX & XXXXXXX POWERED AIRCRAFT
Ladies and Gentlemen:
Northwest Airlines, Inc., ("Northwest") and AVSA, S.A.R.L. ("Seller"),
have entered into an A330 Purchase Agreement, dated as of even date herewith
(the "Agreement"), which covers, among other matters, the sale by Seller and the
purchase by Northwest of certain Aircraft, under the terms and conditions set
forth in said Agreement. Northwest and Seller have agreed to set forth in this
Letter Agreement No. 5B (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 shall 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 shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
AVSA represents and warrants that the Manufacturer has provided to AVSA
the following performance guarantees with respect to the Aircraft, subject to
the terms, conditions, limitations and restrictions all as hereinafter set out,
and that such guarantees are in full force and effect and have not been amended.
AVSA hereby assigns to Northwest and Northwest hereby accepts, all of AVSA's
rights and obligations as the "Buyer" under the said performance guarantees and
AVSA subrogates Northwest to all such rights and obligations in respect of the
Aircraft. AVSA hereby warrants to Northwest that (i) it has all the requisite
authority to make the foregoing assignment to and effect the foregoing
subrogation in favor of Northwest, (ii) such assignment and subrogation are
effective to confer on Northwest all of the foregoing rights and obligations of
AVSA, and (iii) AVSA shall not enter into any amendment of the provisions so
assigned or subrogated without the prior written consent of Northwest.
It is understood that, in the provisions below between the words QUOTE
and UNQUOTE, capitalized terms have the meanings assigned thereto in this
Agreement, except that (i) the term "Seller," which means the Manufacturer as
between the Manufacturer and AVSA, also means the Manufacturer in this
Agreement, and (ii) the term "Buyer," which means AVSA as between the
Manufacturer and the Seller, means Northwest.
LA5B (PW)-1
QUOTE
PART A A330-300 PERFORMANCE GUARANTEES
PREAMBLE
A. Assumptions:
The guarantees defined below in this Part A are applicable at the
time of delivery to each A330-300 as described in the A330-300
Standard Specification Ref. G 000 03000 Issue 6 Revision 1, dated
15th July 1998, amended by Specification Change Notices ("SCN")
for:
i) increase of design weights
Maximum Taxi Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Takeoff Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Landing Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Zero Fuel Weight: (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
ii) fitting of either:
(x) General Electric CF6-80E1A3 engines
(y) Xxxxx and Xxxxxxx PW4168A engines with Kevlar fan case
(z) Rolls-Xxxxx Xxxxx 772B engines except where otherwise
noted.
These guarantees are comprehensive including the performance of
both the airframe and engine in combination.
For information only:
For establishing FAA certified performance these guarantees have
been based on:
(x) the FAA certified Flight Manual of the A330-200 fitted with
General Electric CF6-80E1A4 engines plus best estimated
corrections for longer fuselage of the A330-300 and higher
take-off thrust of the CF6-80E1A3 engines
(y) the FAA certified Flight Manual of the A330-300 fitted with
Xxxxx and Xxxxxxx PW4168A engines
(z) the FAA certified Flight Manual of the A330-300 fitted with
Rolls Xxxxx Xxxxx 772B engines,
LA5B (PW)-2
with, in each case, a take-off thrust rating flat rated to 86
(degree)F (ISA+15(degree)C) at sea level.
For establishing uncertified performance these guarantees have
been based on the In Flight Performance level relevant at the date
of signature of the Purchase Agreement (the "IFP Level") and
consistent with the Aircraft Performance Document (the "Orange
Book")
(x) for CF6-80E1A3 engines : ref. AI/CM-T P3302 Issue 3
(y) for PW4168A engines : ref. AI/CM-T P3322 Issue 3
(z) for Trent 772B engines : ref. AI/CM-T P3342 Issue 3
D. Definitions:
(i) For the purpose of this Part A of this Letter Agreement
only, the term "Aircraft" is defined as any and all of the
A330-300 model aircraft to be acquired by the Buyer under
the Agreement.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
1. GUARANTEED PERFORMANCE
1.1 SPEED
The level flight airspeed at an Aircraft gross weight of 460,000 pounds
at a pressure altitude of 35,000 feet using maximum cruise thrust in
ISA conditions shall not be less than a true Mach number of:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
1.2 EN-ROUTE ONE ENGINE INOPERATIVE
Each Aircraft shall meet minimum en-route climb gradient (currently
1.1%) with one engine inoperative, the other operating at the maximum
continuous thrust available at the altitude with air conditioning
bleeds on, without anti-icing, at a gross weight of pounds in the
cruise configuration in ISA conditions, at a geometric altitude of:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
LA5B (PW)-3
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
1.3 TAKE-OFF PERFORMANCE
1.3.1 The FAR permissible take-off weight shall not be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
in the following conditions (assumed representative of):
Pressure altitude: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Ambient temperature: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
Runway length: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Slope: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Obstacles (8): (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
1.3.2 The FAR permissible take-off weight shall not be less than
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds in the following conditions (assumed representative
of(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)):
Pressure altitude: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Ambient temperature: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
Runway length: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Slope: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE
LA5B (PW)-4
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Obstacles (11): (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
1.4 ALL ENGINE CLIMB
The time, fuel burn and distance in still air to climb from an initial
climb altitude of 1,500 feet to a final climb altitude of 35,000 feet
on a standard day, using the conditions and operating rules defined
below and using not more than maximum climb thrust, shall not be more
than the following guarantee values:
(x) for CF6-80E1A3 engines:
Time (minutes):
NOMINAL: 27.6 mn TOLERANCE: 1.0 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)mn
Fuel burn (pounds):
NOMINAL: 11,890 lb TOLERANCE: 530 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 197 nm TOLERANCE: 8 nm GUARANTEE: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nm
(y) for PW4168A engines:
Time (minutes):
NOMINAL: 33.0 mn TOLERANCE: 1.5 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) mn
Fuel burn (pounds):
NOMINAL: 13,185 lb TOLERANCE:705 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 238 nm TOLERANCE: 12 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
Time (minutes):
NOMINAL: 25.0 mn TOLERANCE: 0.8 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)mn
LA5B (PW)-5
Fuel burn (pounds):
NOMINAL: 11,110 lb TOLERANCE: 450 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 178 nm TOLERANCE: 6 nm GUARANTEE: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
Initial Conditions: A gross weight of 512,020 pounds
A speed of 250 KCAS.
The flaps and landing gear are retracted.
Climb: The Aircraft climbs from the initial
climb altitude to 10,000 feet altitude
at 250 KCAS.
The Aircraft then accelerates to a climb speed
of 330 KCAS.
The climb continues at 330 KCAS until 0.82
Mach number is reached. The climb continues
at 0.82 Mach number to the final climb
altitude at a rate of climb not less than
300 feet per minute.
1.5 LANDING DISTANCE
The FAR certified dry landing field length at an Aircraft gross weight
of (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)pounds at sea level pressure altitude shall not
be greater than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
2. FUEL BURN GUARANTEE
2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)AIRCRAFT SPECIFIC RANGE
The still air range expressed in nautical miles at an initial cruise altitude of
35,000 feet on a standard day at 0.82 Mach number, starting at a gross weight of
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
pounds and consuming 140,000 pounds of fuel, and using not more than
maximum cruise thrust (except maximum climb thrust may be used during a
step climb) and using the conditions and operating rules defined below,
shall not be less than the following guarantee value for each Aircraft
(the "Guaranteed (CONFIDENTIAL MATERIAL OMITTED AND
LA5B (PW)-6
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT) Specific Range"):
(x) for CF6-80E1A3 engines:
NOMINAL: 5,311 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(y) for PW4168A engines:
NOMINAL: 5,292 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
NOMINAL: 5,312 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
A step climb or multiple step climbs of 4,000 feet altitude may be used
when beneficial to minimize fuel burn.
2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)SPECIFIC RANGE
The still air range expressed in nautical miles at an initial cruise
altitude of 35,000 feet on a standard day at 0.82 Mach number, starting
at a gross weight of (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds and consuming 140,000 pounds
of fuel, and using not more than maximum cruise thrust (except maximum
climb thrust may be used during a step climb) and using the conditions
and operating rules defined below, shall not be less than the following
guarantee value (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)(the "Guaranteed (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Specific Range"): (x)
for CF6-80E1A3 engines:
NOMINAL: 5,311 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nm
(y) for PW4168A engines:
NOMINAL: 5,292 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
NOMINAL: 5,312 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
LA5B(PW)-7
A step climb or multiple step climbs of 4,000 feet altitude may be used
when beneficial to minimize fuel burn.
3. MISSION PAYLOAD RANGE GUARANTEE
For each Aircraft the payload for a stage length of (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nautical miles in still air
(representative of a (CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
route) using the conditions and operating rules defined below, shall
not be less than the following guarantee value in pounds:
(x) for CF6-80E1A3 engines:
NOMINAL: 84,600 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
(y) for PW4168A engines:
NOMINAL: 82,900 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) lb
(z) for Trent 772B engines:
NOMINAL: 84,000 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Conditions and operating rules:
Stage The stage length is defined as the sum of the
Length: distances for climb, cruise, and descent.
Takeoff: The airport altitude is 14 feet.
The takeoff gross weight is 513,677 pounds.
Climbout Following the takeoff to 800 feet, the aircraft
Maneuver: accelerates to 250 KCAS while climbing to 1,500
feet above the departure airport altitude and
retracting flaps and landing gear.
Climb: The aircraft climbs from 1,500 feet above the
departure airport altitude to 10,000 feet altitude
at 250 KCAS. The aircraft then accelerates to a
climb speed of 330 KCAS. The climb continues at
330 KCAS until 0.82 Mach number is reached. The
climb continues at 0.82 Mach number to the
initial cruise altitude at a rate of climb not
less than 300 feet per minute. The temperature
is standard day during climb. Maximum climb
thrust is used during climb.
Cruise: The Aircraft cruises at 0.82 Mach number.
The initial cruise altitude is 35,000 feet.
LA5B(PW)-8
A step climb or multiple step climb of 4,000
feet altitude may be used when beneficial to
minimize fuel burn. The temperature is standard
day during cruise. The cruise thrust is not to
exceed maximum cruise thrust except during a
step climb when maximum climb thrust may be
used.
Descent: The Aircraft descends from the final cruise
altitude at 0.82 Mach number until 330 KCAS is
reached. The descent continues at 330 KCAS to
an altitude of 10,000 feet. At that altitude
the Aircraft decelerates to 250 KCAS. The
descent continues at 250 KCAS to an altitude of
1,500 feet above the destination airport
altitude. Throughout the descent, the cabin
pressure will be controlled to a maximum rate
of descent equivalent to 350 feet per minute at
sea level. The temperature is standard day
during descent.
Approach and The Aircraft decelerates to the final approach
Landing Maneuver: speed while extending landing gear and flaps, then
descends and lands.
The destination airport altitude is 841 feet.
Usable Reserve At the end of approach and landing, an amount of
Fuel: fuel corresponding to the profile defined below
shall remain in the tanks :
FAR Reserve - 31.5 minutes hold (representative
of 30 minutes hold with 5% xxxx-up for
racetrack pattern) at 1500ft, ISA,at actual
Zero Fuel Weight.
Alternate - alternate is assumed to be 67 NM
(Rochester, MN).
Fuel burn and time include the following:
Fuel for takeoff to operational climb speed
with 2 minutes time allowance and no
distance credit
Optimum climb airspeed for fuel economy
Cruise at LRC at optimum altitude Optimum
descent airspeed for fuel economy Approach
and land fuel with 5 minutes time allowance
and no distance credit
(alternate fuel will never be less than fuel to
a 15 minute alternate)
International 10% - 10 minutes of fuel at end
of cruise altitude, LRC, ISA, actual landing
weight.
Contingency (Holding) - 21 minutes hold
(representative of 20 minutes hold with 5%
xxxx-up for racetrack pattern), FL150, ISA,
actual landing weight.
Fixed Allowances: For the purpose of this guarantee and for the
purpose of establishing compliance with this
guarantee, the following shall be used as fixed
quantities and allowances:
LA5B(PW)-9
Engine Start and Taxi-out: 800 pounds of fuel
Takeoff and Climbout Maneuver: 1,650 pounds of
fuel for mission departure and 1,150 pounds of
fuel for alternate
Approach and Landing Maneuver: 420 pounds of fuel
for mission and 420 pounds of fuel for alternate
Taxi-in (shall be consumed from the reserve fuel):
500 pounds of fuel
The Operating Weight Empty (OWE) derived in Subparagraph 4.2 of this
Part A is the basis for this mission guarantee.
4. WEIGHT GUARANTEES
4.1 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty (as
defined in the A330-300 Standard Specification set forth in the
Preamble) of each Aircraft as defined in the Preamble, which will be
derived from the weighing of each Aircraft, shall not be more than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for ANY(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) Aircraft
and shall not be more than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
LA5B(PW)-10
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
4.2 STRUCTURAL USABLE LOAD
The Seller guarantees that the excess of the Maximum Zero Fuel Weight
(as defined in the A330-300 Standard Specification set forth in the
Preamble) of each Aircraft as defined in the Preamble over the
Operating Weight Empty (as defined below) of such Aircraft, shall not
be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for ANY(CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) Aircraft
and shall not be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Operating Weight Empty is the sum of the Manufacturer's Weight Empty
(as defined in the Type Specification set forth in the Preamble) plus
the following fixed allowances:
(x) for CF6-80E1A3 engines:
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator items
(y) for PW4168A engines:
LA5B(PW)-11
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator items
(z) for Trent 772B engines:
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator items
5. GENERAL GUARANTEE CONDITIONS
5.1 AIRCRAFT CONFIGURATION
Seller reserves the right to make reasonable and appropriate
adjustments to the guarantees set forth in this Part A for any
configuration change or deviation from the A330-300 Standard
Specification which is agreed between Buyer and Seller subsequent to
the date hereof, provided that any such adjustment is made
contemporaneously with such A330-300 Standard Specification change or
deviation.
5.2 PERFORMANCE DEFINITIONS
5.2.1 Performance and noise certification rules will be those required to
obtain FAR certification under the FAA Airworthiness Code as defined in
the Type Specification.
5.2.3 All performance data is based on the International Standard Atmosphere
and specified variations. Unless otherwise stated all altitudes are
pressure altitudes.
5.2.3 Unless otherwise stated, take-off and landing performance is based upon
a hard, smooth, dry and level runway surface with zero wind, and
assumes no line-up allowance.
5.2.4 Take-off and landing performance is based on the brakes and tires as
specified in the aircraft configuration defined in the Preamble.
5.2.5 Devices such as flaps, landing gear, speed brakes, wheel brakes,
anti-skid and engines will be employed in the manner which provides the
best performance standard consistent with approved operations.
5.2.6 All guaranteed performance in this Part A is based upon no air bleed
from the engines for airframe or engine anti-icing.
5.2.7 For take-off and take-off climb performance, landing and landing climb
performance, no air will be bled from the engine for air conditioning.
5.2.8 For en route performance, engine bleeds consistent with normal
operation of the air conditioning system, including recirculation, are
assumed.
LA5B(PW)-12
5.2.9 Normal electrical services will be in use consistent with the typical
load schedule given in the A330-300 Standard Specification.
5.2.10 All guaranteed performance in this Part A assumes the use of approved
fuel with a Lower Heating Value (the "LHV") of 18,590 BTU/lb and with a
specific gravity of 6.7 pounds/gallon as such.
5.2.11 The speed, specific range and all-engine climb guarantees and the
climb, cruise and descent portions of the mission guarantees are based
on an Aircraft center of gravity location of 33 percent of the mean
aerodynamic chord.
5.3 COMPLIANCE
5.3.1 The Seller shall provide to Buyer a guarantee compliance report
providing the compliance data for each Aircraft (the "Guarantee
Compliance Report"), in a timely manner after final data is collected,
but in no event later than ten (10) Working Days after acceptance by
Buyer of the Aircraft. The Guarantee Compliance Report shall contain
compliance results determined in accordance with this Subparagraph 5.3.
5.3.2 Compliance with the en-route one engine inoperative, takeoff
performance and landing distance guarantees will be demonstrated with
reference to performance data contained in the approved Flight Manual.
Compliance with climb performance and speed will be demonstrated with
reference to the IFP Level.
5.3.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
a) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
c) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
d) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
e) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
f) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA5B(PW)-13
5.3.4 The actual (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Aircraft specific range, used for determining
compliance with the fuel burn and mission payload guarantees, will be
defined as the IFP Level corrected by the Correction Factor.
5.3.5 The actual (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)specific range, used for determining compliance
with the fuel burn guarantee, will be defined upon delivery of each
individual Aircraft as (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
5.3.6 Compliance with fuel burn guarantees shall be determined as follows:
(i) with respect to each Aircraft, if its actual (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft specific range meets the guarantee level
set forth in Subparagraph 2.1 of this Part A.
(ii) with respect to the(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT), if, upon delivery of
any Aircraft, the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)specific range meets the
guarantee level set forth in Subparagraph 2.2 of this Part A.
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
5.3.7 Compliance with the mission payload guarantee, as defined in Paragraph
3 of this Part A, will be based on the actual individual Aircraft
specific range as defined in Subparagraph 5.3.4 of this Part A and the
actual Manufacturer's Weight Empty of the applicable Aircraft as
determined pursuant to Subparagraph 5.3.8 of this Part A.
5.3.8 Compliance with the weight guarantees set forth in Subparagraphs 4.1
and 4.2 of this Part A shall be demonstrated in a weight compliance
report with reference to actual aircraft weighing results.
6 ADJUSTMENT OF GUARANTEES
Should any change be made to any law, governmental regulation or
requirement or interpretation thereof ("Rule Change") by any
governmental agency subsequent to the date of the Agreement, and should
such Rule Change (i) more than minimally affect the Aircraft
configuration or performance or both, and (ii) be required to obtain
the Standard Airworthiness Certificate for the Aircraft, the guarantees
set forth herein shall be appropriately modified to reflect the
effect(s) of any such Rule Change(s).
7. EXCLUSIVE GUARANTEES
LA5B(PW)-14
The guarantees set forth in this Part A supersede any similar
guarantees from Seller that may be stated in the A330-300 Standard
Specification or any other document, except for the guarantees set
forth in Part B of this Letter Agreement.
8. REMEDIES
8.1 GENERAL
8.1.1 In the event that the Seller fails to demonstrate compliance by one or
more Aircraft (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)with any of the guarantees set forth in this
Part A, the Seller shall
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8.1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.5 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.6 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2 FUEL BURN
The Compensation for failure to comply with either the guarantee set
forth in Subparagraph 2.1 or Subparagraph 2.2 of this Part A shall be
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2.1 DEFICIENCY OF (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)AIRCRAFT
LA5B(PW)-15
In the event that an (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft
fails to comply with the guarantee set forth in Subparagraph
2.1 of this Part A, the amount of Compensation (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2.2 DEFICIENCY OF AIRCRAFT FLEET
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)fails to
comply with the guarantee set forth in Subparagraph 2.2 of
this Part A, the amount of Compensation (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
8.3 PAYLOAD
The Compensation for failure to comply with either the guarantees set
forth in Subparagraph 1.3, Paragraph 3 or Subparagraph 4.2 of Part A of
this Letter Agreement shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
8.3.1 MISSION PAYLOAD RANGE
In the event that any Aircraft fails to meet the mission payload range
guarantee in Paragraph 3 of this Part A, the amount of Compensation
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.3.2 STRUCTURAL USABLE LOAD
In the event that any Aircraft (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)fail to meet the guarantee levels
specified in Subparagraph 4.2 of this Part A, the Compensation shall
BE(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8.3.3 TAKE-OFF
LA5B(PW)-16
In the event that an Aircraft fails to meet the take-off guarantees set
forth in Subparagraph 1.3 of this Part A, the amount of Compensation
shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT). The amount of Compensation hereunder shall
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.3.4 LANDING
In the event that an Aircraft fails to meet the landing guarantee set
forth in Subparagraph 1.5 of this Part A, the amount of Compensation
shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), provided that the Buyer demonstrates to the
Seller that such deficiency adversely impacts the Buyer's operation of
the affected Aircraft.
8.4 MANUFACTURER'S WEIGHT EMPTY
In the event that the Manufacturer's Weight Empty (MWE) of an (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft or of the
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
exceeds the guarantee levels specified in Subparagraph 4.1 of this Part
A the amount of Compensation shall be (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
8.5 SPEED
In the event that an Aircraft fails to meet the speed guarantee set
forth in Subparagraph 1.1 of this Part A, the amount of Compensation
shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), subject to the limitations and conditions set
forth in Subparagraph 8.8 of this Part A, provided that the Buyer
demonstrates to the Seller that such deficiency adversely impacts the
Buyer's operation of the affected Aircraft.
8.6 ONE ENGINE INOPERATIVE
In the event that an Aircraft fails to meet the one engine inoperative
guarantee set forth in Subparagraph 1.2 of this Part A, the amount of
Compensation shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT), subject to the limitations and
conditions set forth in Subparagraph 8.8 of this Part A, provided that
the Buyer demonstrates to the Seller that such deficiency adversely
impacts the Buyer's operation of the affected Aircraft.
8.7 ALL ENGINE CLIMB
LA5B(PW)-17
In the event that an Aircraft fails to meet the all engine climb
guarantee set forth in Subparagraph 1.4 of this Part A, the amount of
Compensation shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT), subject to the limitations and
conditions set forth in Subparagraph 8.8 of this Part A, provided that
the Buyer demonstrates to the Seller that such deficiency adversely
impacts the Buyer's operation of the affected Aircraft.
8.8 LIMITATIONS AND CONDITIONS
(i) The Seller shall have the right to review and verify data
collected by the Buyer, which is provided to Seller for Seller
to perform the calculations of Compensation due hereunder.
(ii) If at any time following delivery of an Aircraft the Seller
restores the required performance level of an Aircraft which
has initially failed to meet the performance guarantee
requirements of Paragraphs 1, 2, 3 or 4 of this Part A, and
the Seller demonstrates compliance for such specific Aircraft
in accordance with the applicable compliance provisions of
this Part A, all further payments of Compensation required
under this Part A with respect to such initial failure shall
cease and the Seller shall have no further obligation to the
Buyer under this Part A for such initial failure in respect of
such Aircraft. Seller shall demonstrate compliance
by(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), gathering data and producing a
Guarantee Compliance Report which demonstrates compliance for
such specific Aircraft in accordance with the applicable
compliance provisions of this Part A. The compliance level
achieved by such Aircraft shall be taken into account for all
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)calculations for the purposes of this
Part A.
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(v) The Seller's maximum liability (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(x) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
LA5B(PW)-18
(vi) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as aforesaid shall be deemed to settle
any and all claims and remedies of the Buyer against the
Seller under this Part A provided that the Seller has first
endeavored to restore the required performance as per
Paragraph 8.1.1(i) above, but shall not settle or modify in
any respect any other claim or remedy of the Buyer against the
Seller. Nothing in this Paragraph 8.8 (vi) shall oblige the
Seller to (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
LA5B(PW)-19
PART B
A330-300 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)GUARANTEES
Seller hereby extends and grants to Buyer the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)guarantees with respect to the Aircraft set forth in
this Part B of this Letter Agreement, subject to the terms,
conditions, limitations and restrictions all as hereinafter
set out.
PREAMBLE
A. Assumptions:
The guarantees defined below in this Part B are applicable to
each A330-300 Aircraft as described in the A330-300 Standard
Specification Ref. G 000 03000 Issue 6 Revision 1, dated 15th
July 1998, amended by Specification Change Notices ("SCN")
(the "Specification") for:
i) increase of Design weights
Maximum Taxi Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Takeoff Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Landing Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Zero Fuel Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
ii) fitting of:
Xxxxx and Xxxxxxx PW4168A engines with Kevlar fan
case
These guarantees are comprehensive including the performance
of both the airframe and engine in combination.
For information only:
For establishing uncertified performance these guarantees
have been based on the In Flight Performance Level
relevant at the date of the signature of the Purchase
Agreement
LA5B(PW)-20
(the "IFP Level") and consistent with the Aircraft
Performance Document (the "Orange Book") ref. AI/CM-T
P3322 Issue 3.
B. Definitions:
(i) For the purpose of this Part B of this Letter
Agreement only, the term "Aircraft" is defined as
any and all of the A330-300 model aircraft to be
acquired by the Buyer under the Agreement.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA5B(PW)-21
1. GENERAL PROVISIONS
1.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
1.2 The (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Guarantees in this Part B are contingent
upon:(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT).
1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT):
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
2. FUEL BURN GUARANTEE
2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) (expressed as a percentage) determined in accordance with
the In-Flight Performance Program (IFP).
- 2.2 The Seller guarantees to the Buyer that the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)shall not be worse than the IFP Level (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA5B(PW)-22
3. MISSION PAYLOAD GUARANTEE
The (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) as stated in Paragraph 2.2 of this Part B shall
allow the carrying of a guaranteed payload of not less than:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
over an equivalent still air stage distance of (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) nautical miles (assumed representative of
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)for a winter operation) when operated
under the conditions described below.
a) If the (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as stated in Subparagraph 2.2 of this
Part B is modified according to Subparagraph 1.3 of this Part B,
the above guaranteed payload shall be modified accordingly,
using the following relationship:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) Available takeoff weight is assumed to be (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
pounds.
c) The destination airport conditions are such as to allow the
required landing weight to be used without performance
restrictions and without exceeding the Maximum Landing Weight as
defined in Type Specification referenced in the Preamble.
d) .
Conditions and operating rules:
Stage The stage length is defined as the sum of the
Length: distances for climb, cruise, and descent.
Takeoff: The airport altitude is 14 feet.
The takeoff gross weight is (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT)pounds.
Climbout Following the takeoff to 800 feet, the aircraft
accelerates to
LA5B(PW)-23
Maneuver: 250 KCAS while climbing to 1,500
feet above the departure airport altitude and
retracting flaps and landing gear.
Climb: The aircraft climbs from 1,500 feet above the
departure airport altitude to 10,000 feet
altitude at 250 KCAS.
The aircraft then accelerates to a climb speed of
330 KCAS.
The climb continues at 330 KCAS until 0.82 Mach
number is reached.
The climb continues at 0.82 Mach number to the
initial cruise altitude at a rate of climb not
less than 300 feet per minute.
The temperature is standard day during climb.
Maximum climb thrust is used during climb.
Cruise: The Aircraft cruises at 0.82 Mach number.
The initial cruise altitude is 35,000 feet.
A step climb or multiple step climb of 4,000 feet
altitude may be used when beneficial to
minimize fuel burn.
The temperature is standard day during cruise.
The cruise thrust is not to exceed maximum cruise
thrust except during a step climb when maximum
climb thrust may be used.
Descent: The Aircraft descends from the final cruise
altitude at 0.82 Mach number until 330 KCAS is
reached.
The descent continues at 330 KCAS to an altitude
of 10,000 feet. At that altitude the Aircraft
decelerates to 250 KCAS.
The descent continues at 250 KCAS to an altitude
of 1,500 feet above the destination airport
altitude.
Throughout the descent, the cabin pressure will be
controlled to a maximum rate of descent equivalent
to 350 feet per minute at sea level.
The temperature is standard day during descent.
Approach and The Aircraft decelerates to the final approach
Landing Maneuver: speed while extending landing gear and flaps, then
descends and lands.
The destination airport altitude is 841 feet.
Usable Reserve At the end of approach and landing, an amount of
Fuel: fuel defined as follows shall remain in the tanks:
FAR Reserve - 31.5 minutes hold (representative
of 30 minutes hold with 5% xxxx-up for
racetrack pattern) at 1500ft, ISA,at actual
Zero Fuel Weight.
Alternate - alternate is assumed to be 67 NM
(Rochester, MN). Fuel burn and time
include the following:
Fuel for takeoff to operational climb speed
with 2 minutes time allowance and no distance
credit
Optimum climb airspeed for fuel economy
Cruise at LRC at optimum altitude
Optimum descent airspeed for fuel economy
LA5B(PW)-24
Approach and land fuel with 5 minutes time
allowance and no distance credit
(alternate fuel will never be less than fuel to a
15 minute alternate)
International 10% - 10 minutes of fuel at end
of cruise altitude, LRC, ISA, actual landing
weight.
Contingency (Holding) - 21 minutes hold
(representative of 20 minutes hold with 5%
xxxx-up for racetrack pattern), FL150, ISA,
actual landing weight.
Fixed Allowances: For the purpose of this guarantee and
for the purpose of establishing compliance with
this guarantee, the following shall be used as
fixed quantities and allowances:
Engine Start and Taxi-out: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds of fuel
Takeoff and Climbout Maneuver: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT)pounds of
fuel for mission departure and (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT)pounds of
fuel for alternate
Approach and Landing Maneuver: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT)pounds of
fuel for mission and (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT)pounds of
fuel for alternate
Taxi-in (shall be consumed from the reserve fuel):
(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT)pounds of fuel
e) The mission payload guarantee is based on an Operating Weight
Empty (OWE) composed of the actual Aircraft Fleet average
Manufacturer's Weight Empty (MWE) as demonstrated at delivery of
the Aircraft Fleet (but in no event more than (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE
LA5B(PW)-25
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
pounds), plus the following fixed allowances:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer
changes
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator
items
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for in-service
growth
4. GENERAL GUARANTEE CONDITIONS
4.1 AIRCRAFT CONFIGURATION
Seller reserves the right to make reasonable and appropriate
adjustments to the guarantees in this Part B for any configuration
change or deviation from Specification which is agreed between Buyer
and Seller subsequent to the date hereof, provided that any such
adjustment is made contemporaneously with such Specification change or
deviation.
4.2 COMPLIANCE
4.2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
a) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
c) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
d) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
4.2.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA5B(PW)-26
4.2.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.5 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.6 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.7 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.8 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.8 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5. REMEDIES
5.1 GENERAL
5.1.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.1.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
FUEL BURN-(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA5B (PW)-27
In the event that the(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) fails to
comply with the guarantee set forth in Subparagraph 2.2 of
this Part B, (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
5.2.2 If the Buyer believes the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)Specific Range Deterioration is
within 1% of the guarantee set forth in Subparagraph 2.2 of this Part
B, Buyer shall give prompt written notice thereof. Upon Seller's
receipt of any notice that the Aircraft Fleet Specific Range
Deterioration is within 1% of the guarantee set forth in Subparagraph
2.2 of this Part B, Buyer, Seller and EM will work together to evaluate
the basic data.
5.3 MISSION PAYLOAD RANGE
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)fails to meet the mission payload
range guarantee set forth in Paragraph 3 of this Part B, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
5.4 LIMITATIONS AND CONDITIONS
(i) The Seller shall have the right to review and verify data
collected by the Buyer, which is provided to Seller for Seller
to perform the calculations of compensation due hereunder.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) The Seller's maximum liability, over the Guarantee Period,
pursuant to (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(x) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) as aforesaid shall be deemed to settle
any and all claims and remedies of the Buyer against the
Seller under this Part B(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
LA5B (PW)-28
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT), but shall not settle or modify in any respect any
other claim or remedy of the Buyer against the Seller. Nothing
in this Paragraph 5.4 (iv) shall (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(v) The intent of Part B of this Letter Agreement is to provide
benefits to the Buyer as a result of the failure of the
Buyer's Aircraft to achieve the performance level stipulated
in the guarantees set forth in this Part B. It is not the
intent, however, to duplicate benefits provided to the Buyer
by the Seller under Part A of this Letter Agreement as a
result of the same failure. (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Further, it is not the intent of the EM to provide duplicate
benefits to Buyer under this Letter Agreement and EM's direct
commitments to Buyer to the extent that such benefits are
duplicative.
UNQUOTE
THIS LETTER AGREEMENT SETS FORTH THE EXCLUSIVE GUARANTEES, WARRANTIES,
EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF AVSA, AND THE
EXCLUSIVE REMEDIES AVAILABLE TO NORTHWEST, ARISING FROM (BUT SOLELY TO
THE EXTENT ARISING FROM) ANY FAILURE OF ANY AIRCRAFT (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)TO
DEMONSTRATE COMPLIANCE WITH ANY OF THE GUARANTEES SET FORTH IN THIS
LETTER AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS, ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ANY OBLIGATION OR
LIABILITY OF AVSA OR ANY RIGHT, CLAIM OR REMEDY OF BUYER IN CONTRACT OR
IN TORT, WHETHER OR NOT ARISING FROM SELLER'S NEGLIGENCE, ACTUAL OR
IMPUTED, INTENTIONAL ACT, OR STRICT LIABILITY AND ANY OBLIGATION OR
LIABILITY OF SELLER OR ANY RIGHT, CLAIM OR REMEDY OF BUYER FOR LOSS OF
OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART, FOR
LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART, OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, 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 PARAGRAPH SHALL REMAIN IN
FULL FORCE AND EFFECT AND PROVIDED, FURTHER, THAT NOTHING IN THIS
LETTER AGREEMENT SHALL BE DEEMED TO MODIFY, SETTLE, COMPROMISE, LIMIT,
RELEASE OR OTHERWISE AFFECT ANY OTHER CLAIM, RIGHT OR REMEDY OF
NORTHWEST AGAINST AVSA OR THE MANUFACTURER. THE GUARANTEES SET FORTH IN
THIS LETTER AGREEMENT SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT
BY A WRITTEN INSTRUMENT SIGNED BY AVSA AND NORTHWEST.
ASSIGNMENT
LA5B (PW)-29
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this paragraph shall
be void and of no force or effect.
LA5B (PW)-30
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 AVSA.
Very truly yours,
AVSA. S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA5B (PW)-31
APPENDIX 1
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA5B (PW)-32
LETTER AGREEMENT NO. 5C
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: PERFORMANCE GUARANTEES FOR ROLLS ROYCE POWERED AIRCRAFT
Ladies and Gentlemen:
Northwest Airlines, Inc., ("Northwest") and AVSA, S.A.R.L., ("AVSA"),
have entered into an A330 Purchase Agreement, dated as of even date herewith
(the "Agreement"), which covers, among other matters, the sale by Seller and the
purchase by Northwest of certain Aircraft, under the terms and conditions set
forth in said Agreement. Northwest and Seller have agreed to set forth in this
Letter Agreement No. 5C (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 shall 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 shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
AVSA represents and warrants that the Manufacturer has provided to AVSA
the following performance guarantees with respect to the Aircraft, subject to
the terms, conditions, limitations and restrictions all as hereinafter set out,
and that such guarantees are in full force and effect and have not been amended.
AVSA hereby assigns to Northwest and Northwest hereby accepts, all of AVSA's
rights and obligations as the "Buyer" under the said performance guarantees and
AVSA subrogates Northwest to all such rights and obligations in respect of the
Aircraft. AVSA hereby warrants to Northwest that (i) it has all the requisite
authority to make the foregoing assignment to and effect the foregoing
subrogation in favor of Northwest, (ii) such assignment and subrogation are
effective to confer on Northwest all of the foregoing rights and obligations of
AVSA, and (iii) AVSA shall not enter into any amendment of the provisions so
assigned or subrogated without the prior written consent of Northwest.
It is understood that, in the provisions below between the words QUOTE
and UNQUOTE, capitalized terms have the meanings assigned thereto in this
Agreement, except that (i) the term "Seller," which means the Manufacturer as
between the Manufacturer and AVSA, also means the Manufacturer in this
Agreement, and (ii) the term "Buyer," which means AVSA as between the
Manufacturer and the Seller, means Northwest.
QUOTE
LA5C (RR)-1
PART A A330-300 PERFORMANCE GUARANTEES
PREAMBLE
A. Assumptions:
The guarantees defined below in this Part A are applicable at the
time of delivery to each A330-300 as described in the A330-300
Standard Specification Ref. G 000 03000 Issue 6 Revision 1, dated
15th July 1998, amended by Specification Change Notices ("SCN")
for:
i) increase of design weights
Maximum Taxi Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Takeoff Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Landing Weight: (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Zero Fuel Weight: (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
ii) fitting of either:
(x) General Electric CF6-80E1A3 engines
(y) Xxxxx and Xxxxxxx PW4168A engines with Kevlar fan case
(z) Rolls-Xxxxx Xxxxx 772B engines except where otherwise
noted.
These guarantees are comprehensive including the performance of
both the airframe and engine in combination.
For information only:
For establishing FAA certified performance these guarantees have
been based on:
(x) the FAA certified Flight Manual of the A330-200 fitted with
General Electric CF6-80E1A4 engines plus best estimated
corrections for longer fuselage of the A330-300 and higher
take-off thrust of the CF6-80E1A3 engines
(y) the FAA certified Flight Manual of the A330-300 fitted with
Xxxxx and Xxxxxxx PW4168A engines
(z) the FAA certified Flight Manual of the A330-300 fitted with
Rolls Xxxxx Xxxxx 772B engines, with, in each case, a take-off
thrust rating flat rated to 86(degree)F (ISA+15(degree)C) at sea
level.
LA5C (RR)-2
For establishing uncertified performance these guarantees have
been based on the In Flight Performance level relevant at the date
of signature of the Purchase Agreement (the "IFP Level") and
consistent with the Aircraft Performance Document (the "Orange
Book")
(x) for CF6-80E1A3 engines : ref. AI/CM-T P3302 Issue 3
(c) for PW4168A engines : ref. AI/CM-T P3322 Issue 3
(d) for Trent 772B engines : ref. AI/CM-T P3342 Issue 3
F. Definitions:
(i) For the purpose of this Part A of this Letter Agreement
only, the term "Aircraft" is defined as any and all of the
A330-300 model aircraft to be acquired by the Buyer under
the Agreement.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
1. GUARANTEED PERFORMANCE
1.1 SPEED
The level flight airspeed at an Aircraft gross weight of 460,000 pounds
at a pressure altitude of 35,000 feet using maximum cruise thrust in
ISA conditions shall not be less than a true Mach number of:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
1.2 EN-ROUTE ONE ENGINE INOPERATIVE
Each Aircraft shall meet minimum en-route climb gradient (currently
1.1%) with one engine inoperative, the other operating at the maximum
continuous thrust available at the altitude with air conditioning
bleeds on, without anti-icing, at a gross weight of pounds in the
cruise configuration in ISA conditions, at a geometric altitude of:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
1.3 TAKE-OFF PERFORMANCE
LA5C (RR)-3
1.3.1 The FAR permissible take-off weight shall not be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds
in the following conditions (assumed representative of):
Pressure altitude: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Ambient temperature: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
Runway length: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Slope: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Obstacles (8): (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
1.3.2 The FAR permissible take-off weight shall not be less than
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds in the following conditions (assumed representative
of(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)):
Pressure altitude: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
Ambient temperature: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) Runway length: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Slope:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
Obstacles (11): (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
LA5C (RR)-4
REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
1.4 ALL ENGINE CLIMB
The time, fuel burn and distance in still air to climb from an initial
climb altitude of 1,500 feet to a final climb altitude of 35,000 feet
on a standard day, using the conditions and operating rules defined
below and using not more than maximum climb thrust, shall not be more
than the following guarantee values:
(x) for CF6-80E1A3 engines:
Time (minutes):
NOMINAL: 27.6 mn TOLERANCE: 1.0 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)mn
Fuel burn (pounds):
NOMINAL: 11,890 lb TOLERANCE: 530 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 197 nm TOLERANCE: 8 nm GUARANTEE: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nm
(y) for PW4168A engines:
Time (minutes):
NOMINAL: 33.0 mn TOLERANCE: 1.5 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) mn
Fuel burn (pounds):
NOMINAL: 13,185 lb TOLERANCE:705 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
NOMINAL: 238 nm TOLERANCE: 12 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
Time (minutes):
NOMINAL: 25.0 mn TOLERANCE: 0.8 mn GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)mn
Fuel burn (pounds):
NOMINAL: 11,110 lb TOLERANCE: 450 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Distance (nautical miles)
LA5C (RR)-5
NOMINAL: 178 nm TOLERANCE: 6 nm GUARANTEE: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
Initial Conditions: A gross weight of 512,020 pounds
A speed of 250 KCAS.
The flaps and landing gear are
retracted.
Climb: The Aircraft climbs from the initial
climb altitude to 10,000 feet altitude
at 250 KCAS.
The Aircraft then accelerates to a
climb speed of 330 KCAS.
The climb continues at 330 KCAS until
0.82 Mach number is reached.
The climb continues at 0.82 Mach number
to the final climb altitude at a rate of
climb not less than 300 feet per minute.
1.5 LANDING DISTANCE
The FAR certified dry landing field length at an Aircraft gross weight
of (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)pounds at sea level pressure altitude shall not
be greater than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)feet
2. FUEL BURN GUARANTEE
2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)AIRCRAFT SPECIFIC RANGE
The still air range expressed in nautical miles at an initial cruise altitude of
35,000 feet on a standard day at 0.82 Mach number, starting at a gross weight of
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) pounds and
consuming 140,000 pounds of fuel, and using not more than maximum cruise thrust
(except maximum climb thrust may be used during a step climb) and using the
conditions and operating rules defined below, shall not be less than the
following guarantee value for each Aircraft (the "Guaranteed (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Specific Range"):
(x) for CF6-80E1A3 engines:
NOMINAL: 5,311 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(y) for PW4168A engines:
LA5C (RR)-6
NOMINAL: 5,292 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
NOMINAL: 5,312 nm TOLERANCE: 106 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
A step climb or multiple step climbs of 4,000 feet altitude may be used
when beneficial to minimize fuel burn.
2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)SPECIFIC RANGE
The still air range expressed in nautical miles at an initial cruise
altitude of 35,000 feet on a standard day at 0.82 Mach number, starting
at a gross weight of (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds and consuming 140,000 pounds
of fuel, and using not more than maximum cruise thrust (except maximum
climb thrust may be used during a step climb) and using the conditions
and operating rules defined below, shall not be less than the following
guarantee value (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)(the "Guaranteed (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Specific Range"):
(x) for CF6-80E1A3 engines:
NOMINAL: 5,311 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nm
(y) for PW4168A engines:
NOMINAL: 5,292 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
(z) for Trent 772B engines:
NOMINAL: 5,312 nm TOLERANCE: 53 nm GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)nm
Conditions and operating rules:
A step climb or multiple step climbs of 4,000 feet altitude may be used
when beneficial to minimize fuel burn.
3. MISSION PAYLOAD RANGE GUARANTEE
For each Aircraft the payload for a stage length of (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) nautical miles in still air
(representative of a (CONFIDENTIAL MATERIAL
LA5C (RR)-7
OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) route) using the conditions
and operating rules defined below, shall not be less than the following
guarantee value in pounds:
(x) for CF6-80E1A3 engines:
NOMINAL: 84,600 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
(y) for PW4168A engines:
NOMINAL: 82,900 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) lb
(z) for Trent 772B engines:
NOMINAL: 84,000 lb TOLERANCE: 4,100 lb GUARANTEE: (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)lb
Conditions and operating rules:
Stage The stage length is defined as the sum
Length: of the distances for climb, cruise, and
descent.
Takeoff: The airport altitude is 14 feet.
The takeoff gross weight is 513,677
pounds.
Climbout Following the takeoff to 800 feet, the
Maneuver: aircraft accelerates to 250 KCAS while
climbing to 1,500 feet above the
departure airport altitude and
retracting flaps and landing gear.
Climb: The aircraft climbs from 1,500 feet
above the departure airport altitude to
10,000 feet altitude at 250 KCAS.
The aircraft then accelerates to a climb
speed of 330 KCAS.
The climb continues at 330 KCAS until
0.82 Mach number is reached.
The climb continues at 0.82 Mach number
to the initial cruise altitude at a rate
of climb not less than 300 feet per
minute.
The temperature is standard day during
climb.
Maximum climb thrust is used during
climb.
Cruise: The Aircraft cruises at 0.82 Mach
number.
The initial cruise altitude is 35,000
feet.
A step climb or multiple step climb of
4,000 feet altitude may be used when
beneficial to minimize fuel burn.
The temperature is standard day during
cruise.
The cruise thrust is not to exceed
maximum cruise thrust except during a
step climb when maximum climb thrust may
be used.
Descent: The Aircraft descends from the final
cruise altitude at 0.82 Mach number
until 330 KCAS is reached.
The descent continues at 330 KCAS to an
altitude of 10,000 feet. At that
altitude the Aircraft decelerates to 250
KCAS.
LA5C (RR)-8
The descent continues at 250 KCAS to an
altitude of 1,500 feet above the
destination airport altitude.
Throughout the descent, the cabin
pressure will be controlled to a maximum
rate of descent equivalent to 350 feet
per minute at sea level.
The temperature is standard day during
descent.
Approach and The Aircraft decelerates to the final
Landing Maneuver: approach speed while extending landing
gear and flaps, then descends and lands.
The destination airport altitude is 841
feet.
Usable Reserve Fuel: At the end of approach and landing, an
amount of fuel corresponding to the
profile defined below shall remain in
the tanks:
FAR Reserve - 31.5 minutes hold
(representative of 30 minutes hold with
5% xxxx-up for racetrack pattern) at
1500ft, ISA,at actual Zero Fuel Weight.
Alternate - alternate is assumed to be
67 NM (Rochester, MN). Fuel burn and
time include the following:
Fuel for takeoff to operational
climb speed with 2 minutes time
allowance and no distance credit
Optimum climb airspeed for fuel
economy
Cruise at LRC at optimum altitude
Optimum descent airspeed for fuel
economy
Approach and land fuel with 5
minutes time allowance and no
distance credit
(alternate fuel will never be less than
fuel to a 15 minute alternate)
International 10% - 10 minutes of fuel
at end of cruise altitude, LRC, ISA,
actual landing weight.
Contingency (Holding) - 21 minutes hold
(representative of 20 minutes hold with
5% xxxx-up for racetrack pattern),
FL150, ISA, actual landing weight.
Fixed Allowances: For the purpose of this guarantee and
for the purpose of establishing
compliance with this guarantee, the
following shall be used as fixed
quantities and allowances:
Engine Start and Taxi-out: 800 pounds of
fuel
Takeoff and Climbout Maneuver: 1,650
pounds of fuel for mission departure
and 1,150 pounds of fuel for
alternate
Approach and Landing Maneuver: 420
pounds of fuel for mission and 420
pounds of fuel for alternate
Taxi-in (shall be consumed from the
reserve fuel): 500 pounds of fuel
LA5C (RR)-9
The Operating Weight Empty (OWE) derived in Subparagraph 4.2 of this
Part A is the basis for this mission guarantee.
4. WEIGHT GUARANTEES
4.1 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty (as defined
in the A330-300 Standard Specification set forth in the Preamble) of
each Aircraft as defined in the Preamble, which will be derived from
the weighing of each Aircraft, shall not be more than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Aircraft
and shall not be more than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
4.2 STRUCTURAL USABLE LOAD
The Seller guarantees that the excess of the Maximum Zero Fuel Weight
(as defined in the A330-300 Standard Specification set forth in the
Preamble) of each Aircraft as defined in the Preamble over the
Operating Weight Empty (as defined below) of such Aircraft, shall not
be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
LA5C (RR)-10
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for any(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) Aircraft
and shall not be less than:
(x) for CF6-80E1A3 engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) for PW4168A engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(z) for Trent 772B engines: (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Operating Weight Empty is the sum of the Manufacturer's Weight Empty
(as defined in the Type Specification set forth in the Preamble) plus
the following fixed allowances:
(x) for CF6-80E1A3 engines:
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator items
(y) for PW4168A engines:
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator items
(z) for Trent 772B engines:
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer changes
LA5C (RR)-11
(CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator items
5. GENERAL GUARANTEE CONDITIONS
5.1 AIRCRAFT CONFIGURATION
Seller reserves the right to make reasonable and appropriate
adjustments to the guarantees set forth in this Part A for any
configuration change or deviation from the A330-300 Standard
Specification which is agreed between Buyer and Seller subsequent to
the date hereof, provided that any such adjustment is made
contemporaneously with such A330-300 Standard Specification change or
deviation.
5.2 PERFORMANCE DEFINITIONS
5.2.1 Performance and noise certification rules will be those required to
obtain FAR certification under the FAA Airworthiness Code as defined in
the Type Specification.
5.2.4 All performance data is based on the International Standard Atmosphere
and specified variations. Unless otherwise stated all altitudes are
pressure altitudes.
5.2.3 Unless otherwise stated, take-off and landing performance is based upon
a hard, smooth, dry and level runway surface with zero wind, and
assumes no line-up allowance.
5.2.4 Take-off and landing performance is based on the brakes and tires as
specified in the aircraft configuration defined in the Preamble.
5.2.5 Devices such as flaps, landing gear, speed brakes, wheel brakes,
anti-skid and engines will be employed in the manner which provides the
best performance standard consistent with approved operations.
5.2.6 All guaranteed performance in this Part A is based upon no air bleed
from the engines for airframe or engine anti-icing.
5.2.7 For take-off and take-off climb performance, landing and landing climb
performance, no air will be bled from the engine for air conditioning.
5.2.8 For en route performance, engine bleeds consistent with normal
operation of the air conditioning system, including recirculation, are
assumed.
5.2.9 Normal electrical services will be in use consistent with the typical
load schedule given in the A330-300 Standard Specification.
5.3.10 All guaranteed performance in this Part A assumes the use of approved
fuel with a Lower Heating Value (the "LHV") of 18,590 BTU/lb and with a
specific gravity of 6.7 pounds/gallon as such.
5.2.11 The speed, specific range and all-engine climb guarantees and the
climb, cruise and descent portions of the mission guarantees are based
on an Aircraft center of gravity location of 33 percent of the mean
aerodynamic chord.
LA5C (RR)-12
5.3 COMPLIANCE
5.3.1 The Seller shall provide to Buyer a guarantee compliance report
providing the compliance data for each Aircraft (the "Guarantee
Compliance Report"), in a timely manner after final data is collected,
but in no event later than ten (10) Working Days after acceptance by
Buyer of the Aircraft. The Guarantee Compliance Report shall contain
compliance results determined in accordance with this Subparagraph 5.3.
5.3.2 Compliance with the en-route one engine inoperative, takeoff
performance and landing distance guarantees will be demonstrated with
reference to performance data contained in the approved Flight Manual.
Compliance with climb performance and speed will be demonstrated with
reference to the IFP Level.
5.3.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
a) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
c) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
d) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
e) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
f) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
5.3.4 The actual (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Aircraft specific range, used for determining
compliance with the fuel burn and mission payload guarantees, will be
defined as the IFP Level corrected by the Correction Factor.
5.3.5 The actual (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)specific range, used for determining compliance
with the fuel burn guarantee, will be defined upon delivery of each
individual Aircraft as (CONFIDENTIAL
LA5C (RR)-13
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
5.3.6 Compliance with fuel burn guarantees shall be determined as follows:
(i) with respect to each Aircraft, if its actual (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)Aircraft specific range meets the guarantee level
set forth in Subparagraph 2.1 of this Part A.
(ii) with respect to the(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT), if, upon delivery of
any Aircraft, the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)specific range meets the
guarantee level set forth in Subparagraph 2.2 of this Part A.
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
5.3.7 Compliance with the mission payload guarantee, as defined in Paragraph
3 of this Part A, will be based on the actual individual Aircraft
specific range as defined in Subparagraph 5.3.4 of this Part A and the
actual Manufacturer's Weight Empty of the applicable Aircraft as
determined pursuant to Subparagraph 5.3.8 of this Part A.
5.3.8 Compliance with the weight guarantees set forth in Subparagraphs 4.1
and 4.2 of this Part A shall be demonstrated in a weight compliance
report with reference to actual aircraft weighing results.
6. ADJUSTMENT OF GUARANTEES
Should any change be made to any law, governmental regulation or
requirement or interpretation thereof ("Rule Change") by any
governmental agency subsequent to the date of the Agreement, and should
such Rule Change (i) more than minimally affect the Aircraft
configuration or performance or both, and (ii) be required to obtain
the Standard Airworthiness Certificate for the Aircraft, the guarantees
set forth herein shall be appropriately modified to reflect the
effect(s) of any such Rule Change(s).
7. EXCLUSIVE GUARANTEES
The guarantees set forth in this Part A supersede any similar
guarantees from Seller that may be stated in the A330-300 Standard
Specification or any other document, except for the guarantees set
forth in Part B of this Letter Agreement.
8. REMEDIES
8.1 GENERAL
8.1.1 In the event that the Seller fails to demonstrate compliance by one or
more Aircraft (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)with any of the guarantees set forth in this
Part A, the Seller shall
LA5C (RR)-14
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8.1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.5 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.1.6 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2 FUEL BURN
The Compensation for failure to comply with either the guarantee set
forth in Subparagraph 2.1 or Subparagraph 2.2 of this Part A shall be
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2.1 DEFICIENCY OF (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)AIRCRAFT
In the event that an (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft
fails to comply with the guarantee set forth in Subparagraph
2.1 of this Part A, the amount of Compensation (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.2.2 DEFICIENCY OF AIRCRAFT FLEET
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
LA5C (RR)-15
CONFIDENTIAL TREATMENT)fails to comply with the guarantee set
forth in Subparagraph 2.2 of this Part A, the amount of
Compensation (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
8.3 PAYLOAD
The Compensation for failure to comply with either the guarantees set
forth in Subparagraph 1.3, Paragraph 3 or Subparagraph 4.2 of Part A of
this Letter Agreement shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
8.3.1 MISSION PAYLOAD RANGE
In the event that any Aircraft fails to meet the mission payload range
guarantee in Paragraph 3 of this Part A, the amount of Compensation
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.3.2 STRUCTURAL USABLE LOAD
In the event that any Aircraft (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)fail to meet the guarantee levels
specified in Subparagraph 4.2 of this Part A, the Compensation shall
be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
8.3.3 TAKE-OFF
In the event that an Aircraft fails to meet the take-off guarantees set
forth in Subparagraph 1.3 of this Part A, the amount of Compensation
shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT). The amount of Compensation hereunder shall
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
8.3.4 LANDING
In the event that an Aircraft fails to meet the landing guarantee set
forth in Subparagraph 1.5 of this Part A, the amount of Compensation
shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), provided that the Buyer demonstrates to the
Seller that such deficiency adversely impacts the Buyer's operation of
the affected Aircraft.
LA5C (RR)-16
8.4 MANUFACTURER'S WEIGHT EMPTY
In the event that the Manufacturer's Weight Empty (MWE) of an (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)Aircraft or of the
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) exceeds
the guarantee levels specified in Subparagraph 4.1 of this Part A the amount of
Compensation shall be (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT).
8.5 SPEED
In the event that an Aircraft fails to meet the speed guarantee set
forth in Subparagraph 1.1 of this Part A, the amount of Compensation
shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), subject to the limitations and conditions set
forth in Subparagraph 8.8 of this Part A, provided that the Buyer
demonstrates to the Seller that such deficiency adversely impacts the
Buyer's operation of the affected Aircraft.
8.6 ONE ENGINE INOPERATIVE
In the event that an Aircraft fails to meet the one engine inoperative
guarantee set forth in Subparagraph 1.2 of this Part A, the amount of
Compensation shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT), subject to the limitations and
conditions set forth in Subparagraph 8.8 of this Part A, provided that
the Buyer demonstrates to the Seller that such deficiency adversely
impacts the Buyer's operation of the affected Aircraft.
8.7 ALL ENGINE CLIMB
In the event that an Aircraft fails to meet the all engine climb
guarantee set forth in Subparagraph 1.4 of this Part A, the amount of
Compensation shall be(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT), subject to the limitations and
conditions set forth in Subparagraph 8.8 of this Part A, provided that
the Buyer demonstrates to the Seller that such deficiency adversely
impacts the Buyer's operation of the affected Aircraft.
8.8 LIMITATIONS AND CONDITIONS
(i) The Seller shall have the right to review and verify data
collected by the Buyer, which is provided to Seller for Seller
to perform the calculations of Compensation due hereunder.
(ii) If at any time following delivery of an Aircraft the Seller
restores the required performance level of an Aircraft which
has initially failed to meet the performance guarantee
requirements of Paragraphs 1, 2, 3 or 4 of this Part A, and
the Seller demonstrates compliance for such specific Aircraft
in accordance with the applicable compliance provisions of
this Part A, all further payments of Compensation required
under this Part A with respect to such initial failure shall
cease and the Seller shall have no further obligation to the
Buyer under this Part A for such initial failure in respect of
such Aircraft. Seller shall demonstrate compliance
LA5C (RR)-17
by(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT), gathering data and producing a
Guarantee Compliance Report which demonstrates compliance for
such specific Aircraft in accordance with the applicable
compliance provisions of this Part A. The compliance level
achieved by such Aircraft shall be taken into account for all
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)calculations for the purposes of this
Part A.
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(v) The Seller's maximum liability (CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(x) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(vi) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as aforesaid shall be deemed to settle
any and all claims and remedies of the Buyer against the
Seller under this Part A provided that the Seller has first
endeavored to restore the required performance as per
Paragraph 8.1.1(i) above, but shall not settle or modify in
any respect any other claim or remedy of the Buyer against the
Seller. Nothing in this Paragraph 8.8 (vi) shall oblige the
Seller to (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
LA5C (RR)-18
PART B A330-300 (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT) GUARANTEES
Seller hereby extends and grants to Buyer the (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)guarantees with respect to the Aircraft set forth in
this Part B of this Letter Agreement, subject to the terms,
conditions, limitations and restrictions all as hereinafter
set out.
PREAMBLE
A. Assumptions:
The guarantees defined below in this Part B are applicable to
each A330-300 Aircraft as described in the A330-300 Standard
Specification Ref. G 000 03000 Issue 6 Revision 1, dated 15th
July 1998, amended by Specification Change Notices ("SCN")
(the "Specification") for:
i) increase of design weights
Maximum Taxi Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Takeoff Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Landing Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
Maximum Zero Fuel Weight: (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)pounds
ii) fitting of:
New Rolls-Xxxxx Xxxxx 772B engines
These guarantees are comprehensive including the performance
of both the airframe and engine in combination.
For information only:
For establishing uncertified performance these guarantees
have been based on the In Flight Performance level
relevant at the date of the signature of the Purchase
Agreement (the "IFP Level") and consistent with the
Aircraft Performance Document (the "Orange Book") ref.
AI/CM-T P3342 Issue 3.
B. Definitions:
LA5C (RR)-19
(i) For the purpose of this Part B of this Letter
Agreement only, the term "Aircraft" is defined as
any and all of the A330-300 model aircraft to be
acquired by the Buyer under the Agreement.
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
1. GENERAL PROVISIONS
1.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
1.2 The (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)Guarantees in this Part B are contingent upon:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
2. FUEL BURN GUARANTEE
LA5C (RR)-20
2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) (expressed as a percentage) determined in accordance with
the In-Flight Performance Program (IFP).
2.2 The Seller guarantees to the Buyer that the (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) shall not
be worse than the IFP Level (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
3. MISSION PAYLOAD GUARANTEE
The (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as stated in Paragraph 2.2 of this Part B shall
allow the carrying of a guaranteed payload of not less than:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) over an equivalent still air stage distance of
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)nautical miles (assumed representative of
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) for a winter operation) when operated
under the conditions described below.
a) If the (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)as stated in Subparagraph 2.2 of this
Part B is modified according to Subparagraph 1.3 of this Part B,
the above guaranteed payload shall be modified accordingly,
using the following relationship:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) Available takeoff weight is assumed to be(CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
pounds.
c) The destination airport conditions are such as to allow the
required landing weight to be used without performance
restrictions and without exceeding the Maximum Landing Weight as
defined in Type Specification referenced in the Preamble.
d) Conditions and operating rules:
Stage The stage length is defined as the sum
Length: of the distances for climb, cruise, and
descent.
LA5C (RR)-21
Takeoff: The airport altitude is 14 feet.
The takeoff gross weight is
(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL
TREATMENT)pounds.
Climbout Following the takeoff to 800 feet, the
Maneuver: aircraft accelerates to 250 KCAS while
climbing to 1,500 feet above the
departure airport altitude and
retracting flaps and landing gear.
Climb: The aircraft climbs from 1,500 feet
above the departure airport altitude to
10,000 feet altitude at 250 KCAS.
The aircraft then accelerates to a
climb speed of 330 KCAS.
The climb continues at 330 KCAS until
0.82 Mach number is reached.
The climb continues at 0.82 Mach number
to the initial cruise altitude at a
rate of climb not less than 300 feet
per minute.
The temperature is standard day during
climb.
Maximum climb thrust is used during
climb.
Cruise: The Aircraft cruises at 0.82 Mach
number.
The initial cruise altitude is 35,000
feet.
A step climb or multiple step climb of
4,000 feet altitude may be used when
beneficial to minimize fuel burn.
The temperature is standard day during
cruise.
The cruise thrust is not to exceed
maximum cruise thrust except during a
step climb when maximum climb thrust
may be used.
Descent: The Aircraft descends from the final
cruise altitude at 0.82 Mach number
until 330 KCAS is reached.
The descent continues at 330 KCAS to an
altitude of 10,000 feet.
At that altitude the Aircraft
decelerates to 250 KCAS.
The descent continues at 250 KCAS to an
altitude of 1,500 feet above the
destination airport altitude.
Throughout the descent, the cabin
pressure will be controlled to a
maximum rate of descent equivalent to
350 feet per minute at sea level.
The temperature is standard day during
descent.
Approach and The Aircraft decelerates to the final
Landing Maneuver: approach speed while extending landing
gear and flaps, then descends and lands.
The destination airport altitude is 841
feet.
Usable Reserve Fuel: At the end of approach and landing, an
amount of fuel defined as follows shall
remain in the tanks :
FAR Reserve - 31.5 minutes hold
(representative of 30 minutes hold with
5% xxxx-up for racetrack pattern) at
1500ft, ISA,at actual Zero Fuel Weight.
LA5C (RR)-22
Alternate - alternate is assumed to be 67 NM
(Rochester, MN). Fuel burn and time include
the following:
Fuel for takeoff to operational
climb speed with 2 minutes time
allowance and no distance credit
Optimum climb airspeed for fuel
economy
Cruise at LRC at optimum altitude
Optimum descent airspeed for fuel
economy
Approach and land fuel with 5
minutes time allowance and no
distance credit
(alternate fuel will never be less than fuel
to a 15 minute alternate)
International 10% - 10 minutes of fuel at
end of cruise altitude, LRC, ISA, actual
landing weight.
Contingency (Holding) - 21 minutes hold
representative of 20 minutes hold with 5%
xxxx-up for racetrack pattern), FL150, ISA,
actual landing weight.
Fixed Allowances: For the purpose of this guarantee and for
the purpose of establishing compliance with
this guarantee, the following shall be used
as fixed quantities and allowances:
Engine Start and Taxi-out: (CONFIDENTIAL
MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
pounds of fuel
Takeoff and Climbout Maneuver:
(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
pounds of fuel for mission departure and
(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)
pounds of fuel for alternate
Approach and Landing Maneuver:
(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL
TREATMENT)pounds of fuel for mission and
(CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL
TREATMENT)pounds of fuel for alternate
Taxi-in (shall be consumed from the
reserve fuel): (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A
LA5C (RR)-23
REQUEST FOR CONFIDENTIAL
TREATMENT)pounds of fuel
e) The mission payload guarantee is based on an Operating Weight
Empty (OWE) composed of the actual Aircraft Fleet average
Manufacturer's Weight Empty (MWE) as demonstrated at delivery of
the Aircraft Fleet (but in no event more than (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)pounds), plus the following fixed allowances:
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for customer
changes
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for operator
items
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT)pounds for in-service
growth
4. GENERAL GUARANTEE CONDITIONS
4.1 AIRCRAFT CONFIGURATION
Seller reserves the right to make reasonable and appropriate
adjustments to the guarantees in this Part B for any configuration
change or deviation from the Specification which is agreed between
Buyer and Seller subsequent to the date hereof, provided that any such
adjustment is made contemporaneously with such Specification change or
deviation.
4.2 COMPLIANCE
4.2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
a) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
b) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
c) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA5C (RR)-24
d) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
4.2.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.5 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.6 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.7 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4.2.8 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5 REMEDIES
5.1 General
5.1.1 In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) exceeds the guaranteed levels set
forth in Subparagraph 2.2 of this Part B, then the Buyer and the
Seller, (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA5C (RR)-25
5.1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.2 FUEL BURN-(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5.2.1 In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT fails to comply with the
guarantee set forth in Subparagraph 2.2 of this Part B,
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT
5.2.2 If the Buyer believes the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) is within (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) of the
guarantee set forth in Subparagraph 2.2 of this Part B, Buyer shall
give prompt written notice thereof. Upon Seller's receipt of any notice
that the (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) is within (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT ) is within (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) of the
guarantee set forth in Subparagraph 2.2 of this Part B, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
5.3 MISSION PAYLOAD RANGE
In the event that the (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT) fails to meet the mission payload
range guarantee set forth in Paragraph 3 of this Part B, (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
5.4 LIMITATIONS AND CONDITIONS
(i) The Seller shall have the right to review and verify data
collected by the Buyer, which is provided to Seller for Seller
to perform the calculations of compensation due hereunder.
LA5C (RR)-26
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) The Seller's maximum liability for the entire Guarantee Period
pursuant to
(x) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(y) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT
(iv) The intent of Part B of this Letter Agreement is to provide
benefits to the Buyer as a result of the failure of the
Buyer's Aircraft to achieve the performance level stipulated
in the guarantees set forth in this Part B. It is not the
intent, however, to duplicate benefits provided to the Buyer
by the Seller under Part A of this Letter Agreement as a
result of the same failure. (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(v) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) as aforesaid shall be deemed to settle
any and all claims and remedies of the Buyer against the
Seller under this Part B, but shall not settle or modify in
any respect any other claim or remedy of the Buyer against the
Seller.
UNQUOTE
THIS LETTER AGREEMENT SETS FORTH THE EXCLUSIVE GUARANTEES, WARRANTIES,
EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF AVSA, AND THE
EXCLUSIVE REMEDIES AVAILABLE TO NORTHWEST, ARISING FROM (BUT SOLELY TO
THE EXTENT ARISING FROM) ANY FAILURE OF ANY AIRCRAFT (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) TO
DEMONSTRATE COMPLIANCE WITH ANY OF THE GUARANTEES SET FORTH IN THIS
LETTER AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS, ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ANY OBLIGATION OR
LIABILITY OF AVSA OR ANY RIGHT, CLAIM OR REMEDY OF BUYER IN CONTRACT OR
IN TORT, WHETHER OR NOT ARISING FROM SELLER'S NEGLIGENCE, ACTUAL OR
IMPUTED, INTENTIONAL ACT, OR STRICT LIABILITY AND ANY OBLIGATION OR
LIABILITY OF SELLER OR ANY RIGHT, CLAIM OR REMEDY OF BUYER FOR LOSS OF
OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART, FOR
LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART, OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, 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 PARAGRAPH SHALL REMAIN IN
FULL FORCE AND EFFECT AND PROVIDED, FURTHER, THAT NOTHING IN THIS
LETTER AGREEMENT SHALL BE DEEMED TO MODIFY, SETTLE, COMPROMISE, LIMIT,
RELEASE OR OTHERWISE AFFECT ANY OTHER CLAIM, RIGHT OR REMEDY OF
NORTHWEST
LA5C (RR)-27
AGAINST AVSA OR THE MANUFACTURER. THE GUARANTEES SET FORTH IN THIS
LETTER AGREEMENT SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A
WRITTEN INSTRUMENT SIGNED BY AVSA AND NORTHWEST.
ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this paragraph shall
be void and of no force or effect.
LA5C (RR)-28
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 AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
LA5C (RR)-29
LETTER AGREEMENT NO. 6
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: A330-500
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by AVSA
and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 6 (the "Letter Agreement") certain additional
terms and conditions regarding the sale of the Aircraft provided for in the
Agreement. Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the Agreement. The
terms "herein," "hereof" and "hereunder" and words of similar import refer to
this Letter Agreement.
The parties hereto agree that this Letter Agreement shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
1. A330-500 LAUNCH
Northwest has expressed serious interest in placing future orders for
the Converted Firm A330-500 Aircraft, under the terms of Paragraph 3 of
Letter Agreement No. 2 to the Agreement. Currently, the A330-500
aircraft is under study with the Manufacturer. In response to
Northwest's interest, AVSA shall make reasonable efforts to cause the
Manufacturer to launch the A330-500 aircraft into production, subject
to the Manufacturer's industrial and commercial constraints and the
Manufacturer's board approval. (CONFIDENTIAL MATERIAL
LA6-1
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
2. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this Paragraph 2
shall be void and of no force or effect.
LA6-2
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return both
copies to AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA6-3
LETTER AGREEMENT NO. 7
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: MISCELLANEOUS ISSUES
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by AVSA
and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 7 (the "Letter Agreement") certain additional
terms and conditions regarding the sale of the Aircraft provided for in the
Agreement. Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the Agreement. The
terms "herein," "hereof" and "hereunder" and words of similar import refer to
this Letter Agreement.
The parties hereto agree that this Letter Agreement shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
1. SUBCLAUSE (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
is hereby superseded and replaced by the following quoted provisions:
LA7-1
QUOTE
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
UNQUOTE
2. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
3. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
4. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT) DELAYS
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this Paragraph 5
shall be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return both
copies to AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
LA7-2
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA7-3
LETTER AGREEMENT NO. 8
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: PREDELIVERY PAYMENTS
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by AVSA
and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 8 (the "Letter Agreement") certain additional
terms and conditions regarding the sale of the Aircraft provided for in the
Agreement. Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the Agreement. The
terms "herein," "hereof" and "hereunder" and words of similar import refer to
this Letter Agreement.
The parties hereto agree that this Letter Agreement shall 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 shall be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement shall
govern.
1. PREDELIVERY PAYMENT SCHEDULE
1.1 Predelivery Payments for the Aircraft will be as set forth in the
payment schedule below in Subparagraph 1.2. The predelivery payment
reference price will be the sum of the Base Price of the Airframe and
the Base Price of the Propulsion Systems at January 2000 delivery
conditions, escalated at a noncompounded annual rate of (CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT) to the
year of delivery of the applicable Aircraft. The Predelivery Payments
are nonrefundable, except as otherwise provided in the
LA8-1
Agreement, and will be paid to AVSA for each Aircraft according to the
following schedule.
LA8-2
1.2 PREDELIVERY PAYMENT SCHEDULE FOR THE AIRCRAFT
PAYMENT PAYMENT DATE PERCENTAGE OF PREDELIVERY
PAYMENT REFERENCE PRICE
--------------------------------------------------------------------------------------------
(CONFIDENTIAL MATERIAL
OMITTED AND FILED
On signature of the Agreement, in SEPARATELY WITH THE
respect of Firm Aircraft, and at SECURITIES AND
1ST option exercise, in respect of EXCHANGE COMMISSION
Option Aircraft PURSUANT TO A REQUEST
FOR CONFIDENTIAL
TREATMENT)
--------------------------------------------------------------------------------------------
In respect of all Aircraft, no later
than the first Working Day of the
following months
--------------------------------------------------------------------------------------------
(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
2ND month before delivery PURSUANT TO A REQUEST
FOR CONFIDENTIAL
TREATMENT)
--------------------------------------------------------------------------------------------
LA8-3
--------------------------------------------------------------------------------------------
(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
3RD month before delivery PURSUANT TO A REQUEST
FOR CONFIDENTIAL
TREATMENT)
--------------------------------------------------------------------------------------------
(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
4TH month before delivery PURSUANT TO A REQUEST
FOR CONFIDENTIAL
TREATMENT)
--------------------------------------------------------------------------------------------
LA8-4
--------------------------------------------------------------------------------------------
(CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
TOTAL PAYMENT BEFORE DELIVERY PURSUANT TO A REQUEST
FOR CONFIDENTIAL
TREATMENT)
--------------------------------------------------------------------------------------------
2. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.1 FIRM AIRCRAFT
2.1.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.1.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA8-5
2.1.5 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.2 OPTION AIRCRAFT AND PURCHASE RIGHT AIRCRAFT
2.2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.2.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.2.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.3.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.3.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.3.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.4.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA8-6
2.4.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.4.2.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(1) (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(2) (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(3) (CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
LA8-7
2.4.2.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
2.5 MISCELLANEOUS
2.5.1 Upon the termination of the Agreement as to an Aircraft either (i) in
the circumstances contemplated in Subclauses 10.2, 10.3 or 10.5 of the
Agreement, or (ii) in the circumstances contemplated in Subclauses 11.4
or 11.5 of the Agreement, in the event that the (CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
2.5.2 Upon the termination of the Agreement by Northwest pursuant to
Subclause 21.2 of the Agreement, (CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT).
3. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder shall not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this Paragraph 3
shall be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return both copies to AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
LA8-8
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA8-9
EXHIBIT 1
(CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT).
LA8-10
LETTER AGREEMENT NO. 9
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: AIRCRAFT CUSTOMIZATION
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by AVSA
and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 9 (the "Letter Agreement") certain additional
terms and conditions regarding the sale of the Aircraft provided for in the
Agreement. Capitalized terms used herein and not otherwise defined in this
Letter Agreement will have the meanings assigned thereto in the Agreement. The
terms "herein," "hereof" and "hereunder" and words of similar import refer to
this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an
integral, 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 that are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. AVSA-SUPPLIED BUYER FURNISHED EQUIPMENT
Northwest and AVSA agree that the seats, galleys and stowages that are
defined as Buyer Furnished Equipment in this Agreement will be
converted into Seller Furnished Equipment (the "AVSA-Supplied Buyer
Furnished Equipment") as contemplated in Subclause 18.7 of the
Agreement. Northwest and AVSA will, as soon as feasible after the date
hereof, enter into applicable SCN's with respect to these Buyer
Furnished Equipment to Seller Furnished Equipment
conversions.(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
LA9-1
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT) All other terms and conditions of Subclause
18.7 of the Agreement will apply.
2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)CHANGES TO THE STANDARD SPECIFICATION
The Aircraft will be delivered with
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(iv) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(v) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Northwest and AVSA will, as soon as feasible after the date hereof,
enter into applicable SCN's with respect to the above modifications.
AVSA confirms that there will be no additional charge to Northwest with
respect to such SCN's.
3. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder will not be assigned or transferred in any manner
without the prior
LA9-2
written consent of AVSA, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 3 will be void and of
no force or effect.
LA9-3
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return both
copies to AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA9-4
LETTER AGREEMENT NO. 10
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other matters, the sale by AVSA
and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. Northwest and AVSA 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 that are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
1.1 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
1.2 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
LA10-1
1.3 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
1.4 (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
2. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(a) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
(b) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT)
ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder will not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this Paragraph 3 will
be void and of no force or effect.
LA10-2
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 AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA10-3
LETTER AGREEMENT NO. 11
As of December 21, 0000
Xxxxxxxxx Xxxxxxxx, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Re: (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Dear Ladies and Gentlemen:
Northwest Airlines, Inc. ("Northwest"), and AVSA, S.A.R.L. ("AVSA"),
have entered into an Airbus A330 Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by AVSA
and the purchase by Northwest of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 11 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft provided for
in the Agreement. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
The terms "herein," "hereof" and "hereunder" and words of similar import refer
to this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an
integral, 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 that are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. EXCUSABLE DELAY
In the event AVSA does not deliver an Aircraft during its original
scheduled delivery month due to circumstances constituting an Excusable
Delay, (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
LA11-1
(i) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
(ii) (ii) (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT)
2. INEXCUSABLE DELAY
In the event AVSA does not deliver an Aircraft during its original
scheduled delivery month due to circumstances not constituting an
Excusable Delay, (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT)
3. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
3.1 FIRM AIRCRAFT
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
UNQUOTE
3.2 OPTION AIRCRAFT AND PURCHASE RIGHT AIRCRAFT
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
QUOTE
(CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITHTHE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
UNQUOTE
LA11-2
4. (CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT)
5. PRICE ADJUSTMENT
If AVSA selects a substitute index by pursuant to Subparagraph 5.1 of
Exhibit D to the Agreement, it will be one that is generally applied to
other customers and not applied solely to the Agreement.
6. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of
Northwest hereunder will not be assigned or transferred in any manner
without the prior written consent of AVSA, and any attempted assignment
or transfer in contravention of the provisions of this Paragraph 6 will
be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute the
original and one (1) copy hereof in the space provided below and return both
copies to AVSA.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Francois Bensier
_____________________________
Its: AVSA Chief Executive Officer
_____________________________
Accepted and Agreed
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxxx X. May
____________________________________
Its: Vice President Aircraft Transactions
____________________________________
LA11-3
