EXHIBIT 4.2
A330
PURCHASE AGREEMENT
BETWEEN
AIRBUS
AS SELLER
AND
KLM ROYAL DUTCH AIRLINES
AS BUYER
REFERENCE: AI/CC-C 337.0014/02
CONTENTS
CLAUSES TITLES
------- ------
0 DEFINITIONS AND INTERPRETATION
1 SALE AND PURCHASE
2 SPECIFICATION
3 PRICES
4 PRICE REVISION
5 PAYMENTS
6 MANUFACTURE PROCEDURE - INSPECTION
7 CERTIFICATION
8 BUYER'S TECHNICAL ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY
11 NON-EXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
13 PATENT AND COPYRIGHT INDEMNITY
14 TECHNICAL DATA AND DOCUMENTATION
15 SELLER'S REPRESENTATIVES
CLAUSES TITLES
------- ------
16 TRAINING AND TRAINING AIDS
17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT
19 INDEMNIFICATION AND INSURANCE
20 TERMINATION
21 ASSIGNMENTS AND TRANSFERS
22 MISCELLANEOUS PROVISIONS
CONTENTS
EXHIBITS TITLES
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Exhibit A SPECIFICATION
Exhibit B FORM OF SPECIFICATION CHANGE NOTICE
Exhibit C PART 1 AIRFRAME PRICE REVISION FORMULA
PART 2 PROPULSION SYSTEMS PRICE REVISION FORMULA
Exhibit D FORM OF CERTIFICATE OF ACCEPTANCE
Exhibit E FORM OF XXXX OF SALE
Exhibit F SERVICE LIFE POLICY - ITEMS OF PRIMARY STRUCTURE
Exhibit G TECHNICAL DATA AND DOCUMENTATION
Exhibit H SPARE PARTS PROCUREMENT
Exhibit I CUSTOMISATION MILESTONES CHART
Exhibit J LIST OF DOCUMENTS AT DELIVERY
A330 PURCHASE AGREEMENT
This A330 Purchase Agreement (the "AGREEMENT") is made on November 2002
BETWEEN:
AIRBUS, a groupement d'interet economique created and existing under French law
having its registered office at 0 Xxxx-Xxxxx Xxxxxxx Xxxxxxxx, 00000
Xxxxxxx-Xxxxx, Xxxxxx and registered with the Toulouse Registre du Commerce
under number RCS Toulouse C 302 609 607 (the "SELLER"),
and
KLM ROYAL DUTCH AIRLINES a company organised under the laws of the Netherlands
having its principal place of business at Xxxxxxxxxxxxxx 00, 0000 XX Xxxxxxxxxx,
xxx Xxxxxxxxxxx (the "BUYER").
WHEREAS subject to the terms and conditions of this Agreement, the Seller
desires to sell the Aircraft to the Buyer and the Buyer desires to purchase the
Aircraft from the Seller.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
0 DEFINITIONS AND INTERPRETATION
0.1 In addition to words and terms elsewhere defined in this Agreement, the
initially capitalised words and terms used in this Agreement shall have
the meaning set out below.
AIRCRAFT means an Airbus A330 aircraft
including the Airframe, the
Propulsion Systems, and any part,
component, furnishing or equipment
installed on the Aircraft on
Delivery under the terms and
conditions of this Agreement.
AIRCRAFT TRAINING SERVICES means all training, including but
not limited to, flight training,
line training, flight assistance,
line assistance, maintenance
support, maintenance training
(including On the Job Training and
Engine Run Up) or training support
performed on aircraft and provided
to Buyer pursuant to this Agreement.
AIRFRAME means the Aircraft excluding the
Propulsion Systems.
AIRFRAME BASIC PRICE has the meaning set out in Clause
3.1
AIRFRAME PRICE REVISION
FORMULA is set out in Part 1 of Exhibit C.
AVIATION AUTHORITY means when used in respect of any
jurisdiction the government entity
which under the laws of such
jurisdiction have control over civil
aviation or the registration,
airworthiness or operation of
aircraft in such jurisdiction.
BALANCE OF FINAL PRICE has the meaning set out in Clause
5.4.1.
BASIC PRICE means the sum of the Airframe Basic
Price and the Propulsion Systems
Basic Price.
XXXX OF SALE has the meaning set out in Clause
9.2.2.
BUYER FURNISHED
EQUIPMENT has the meaning set out in Clause
18.1.1.
CERTIFICATE OF ACCEPTANCE has the meaning set out in Clause
8.3.
DEFAULT RATE means the rate of Default Interest
as defined in Clause 5.7.
DELIVERY means the transfer of title to the
Aircraft from the Seller to the
Buyer in accordance with Clause 9.
DELIVERY DATE means the date on which Delivery
shall occur.
DELIVERY LOCATION means the facilities of the Seller
at the location of final assembly of
the Aircraft.
EXCUSABLE DELAY has the meaning set out in Clause
10.1.
EXPORT AIRWORTHINESS
CERTIFICATE means an export certificate of
airworthiness issued by the Aviation
Authority of the Delivery Location.
FINAL PRICE has the meaning set out in Clause
3.3
GROSS NEGLIGENCE means any act or omission
done with intent to cause damage or
recklessly and with knowledge that
damage would probably result.
GROUND TRAINING SERVICES means all training, other than
Aircraft Training Services,
including but not limited to,
courses performed in classrooms
(classical or CBT courses), full
flight simulator sessions, fixed
base simulator sessions, field trips
and any other services provided to
Buyer on the ground pursuant to this
Agreement,
MANUFACTURE FACILITIES means the various manufacture
facilities of the Seller, the
Members or any sub-contractor where
the Airframe or its parts are
manufactured or assembled.
MANUFACTURER SPECIFICATION means an agreement in writing
CHANGE NOTICE, OR MSCN between the parties to
amend the Specification pursuant to
Clause 2.1.3.
MATERIEL has the meaning set out in Clause
1.1 of Exhibit H.
MEMBERS means each of Airbus France S.A.S,
Airbus Deutschland GmbH, Airbus
Espana S.L. and Airbus UK Ltd.
NON-EXCUSABLE DELAY has the meaning set out in Clause
11.1.
PREDELIVERY PAYMENT means the payment(s) determined in
accordance with Clause 5.3.
PROPULSION SYSTEMS has the meaning set out in Clause
2.2.
PROPULSION SYSTEMS BASIC means the price of a set of
PRICE Propulsion Systems as set out in
Clause 3.2.
PROPULSION SYSTEMS means the reference price of a set
REFERENCE PRICE of Propulsion Systems as set out in
Part 2 of Exhibit C.
PROPULSION SYSTEMS means the manufacturer of the
MANUFACTURER Propulsion Systems as set out in
Clause 2.2.
PROPULSION SYSTEMS PRICE is set out in Part 2 of Exhibit C.
REVISION FORMULA
READY FOR DELIVERY means the time when (i) the
Technical Acceptance Process has
been successfully completed and (ii)
the Export Airworthiness Certificate
has been issued.
SCHEDULED DELIVERY MONTH has the meaning set out in Clause
9.1.
SELLER'S REPRESENTATIVES means the representatives of the
Seller referred to in Clause 15.1.
SELLER REPRESENTATIVES means the services provided by the
SERVICES Seller to the Buyer and from the
Buyer to the Seller pursuant to
Clause 15.
SELLER SERVICE LIFE POLICY has the meaning set out in Clause
12.2.
SPARE PARTS means the items of equipment and
materiel which may be provided
pursuant to Exhibit H.
SPECIFICATION CHANGE means an agreement in writing
NOTICE OR SCN between the parties to amend the
Specification pursuant to Clause 2.
SPECIFICATION means either (a) the Standard
Specification if no SCNs are
applicable or (b) if SCNs are
issued, the Standard Specification
as amended by all applicable SCNs.
STANDARD SPECIFICATION means the A330-200 standard
specification document number
G.000.02000, Issue 4, dated 18th May
2001, a copy of which has been
annexed hereto as Exhibit A.
SUPPLIER has the meaning set out in Clause
12.3.1.1.
SUPPLIER PART has the meaning set out in Clause
12.3.1.2.
SUPPLIER PRODUCT
SUPPORT AGREEMENT has the meaning set out in Clause
12.3.1.3.
TECHNICAL DATA AND
DOCUMENTATION has the meaning set out in Clause
14.1.
TOTAL LOSS has the meaning set out in Clause
10.4.
TYPE CERTIFICATE has the meaning set out in Clause
7.1.
WARRANTED PART has the meaning set out in Clause
12.1.1.
0.2 Clause headings and the Index are inserted for convenience of
reference only and shall be ignored in the interpretation of
this Agreement.
0.3 In this Agreement unless the context otherwise requires:
(a) references to Clauses, Appendices, and Exhibits are
to be construed as references to the Clauses of, and
Appendices, and Exhibits to this Agreement and
references to this Agreement include its Schedules,
Exhibits and Appendices;
(b) words importing the plural shall include the
singular and vice versa; and
(c) references to a person shall be construed as
including, without limitation, references to an
individual, firm, company, corporation,
unincorporated body of persons and any state or
agency of a state.
1 SALE AND PURCHASE
The Seller shall sell and deliver and the Buyer shall buy and
take delivery of six (6) A330-200 Aircraft on the Delivery
Date at the Delivery Location upon the terms and conditions
contained in this Agreement.
2 SPECIFICATION
2.1 AIRFRAME SPECIFICATION
2.1.1 SPECIFICATION
The Airframe shall be manufactured in accordance with the
Standard Specification, as modified or varied from time to
time by the Specification Change Notices listed in Appendix 1
to Exhibit A. The parties have attached in Appendix 1 to
Exhibit A a preliminary list of Specification Change Notices
which shall be subject to revision within the limits defined
in Clause 2.3.
2.1.2 SPECIFICATION CHANGE NOTICE (SCN)
The Specification may be amended from time to time by written
agreement between the parties in a Specification Change
Notice. Each Specification Change Notice shall be
substantially in the form set out in Exhibit B and shall set
out in detail the particular change to be made to the
Specification and the effect, if any, of such change on
design, performance, weight, time of Delivery of the Aircraft,
and on the text of the Specification. Such SCN may result in
an adjustment of the Basic Price . The discussions leading to
the selection by the Buyer of a given SCN shall include a
review of the impact on maintenance or operation, if any.
2.1.3 DEVELOPMENT CHANGES
The Specification may also be revised by the Seller without
the Buyer's consent in order to incorporate development
changes provided that such changes do not adversely affect
price, time of delivery, weight or performance of the
Aircraft, maintanability, operations, interchangeability or
replaceability requirements under the Specification. In any
other case the Seller shall issue to the Buyer a Manufacturer
Specification Change Notice. Development changes are changes
deemed necessary by the Seller to improve the Aircraft or the
manufacturing process thereof, prevent delay or ensure
compliance with this Agreement.
2.1.4 SPECIFICATION CHANGE NOTICES FOR CERTIFICATION
The provisions relating to Specification Change Notices for
certification are set out in Clauses 7.2. and 7.3.
2.1.5 BUYER IMPORT REQUIREMENTS
The provisions relating to Specification Change Notices for
Buyer import requirements are set out in Clause 7.4.
2.1.6 INCONSISTENCY
In the event of any inconsistency between the Specification
and any other part of this Agreement, this Agreement shall
prevail to the extent of such inconsistency.
2.2 PROPULSION SYSTEMS
2.2.1 The Airframe shall be equipped with a set of either two (2)
General Electric CF6-80E1A3, or Xxxxx and Xxxxxxx XX0000X, or
Rolls Royce RB211 Trent 772B engines, including associated
standard equipment, nacelles and thrust reversers (the
"PROPULSION SYSTEMS").
2.2.2 The Buyer shall [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT].
2.3 CUSTOMISATION MILESTONES CHART.
Prior to the signature of this Agreement, the Seller has
provided the Buyer with an indicative Customisation Milestones
Chart (attached as Exhibit I) setting out the minimum lead
times prior to the Scheduled Delivery Month of the Aircraft,
when a mutual agreement shall be reached (execution of a SCN)
in order to integrate into the Specification, any items
requested by the Buyer from the Specification Changes
Catalogues made available by the Seller. The Buyer and the
Seller shall review this indicative Customisation Milestones
Chart by the end of April 2003.
3 PRICES
3.1 AIRFRAME BASIC PRICE
3.1.1 The Airframe Basic Price is the sum of:
(i) the basic price of the Airframe as defined in the
Standard Specification (excluding Buyer Furnished
Equipment), which is:
US Dollars
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
(ii) the sum of the basic prices of all SCNs set forth in
Appendix 1 to Exhibit "A", which is :
US Dollars
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
3.1.2 The Airframe Basic Price has been established in accordance
with the average economic conditions prevailing in December
1999, January 2000 and February 2000 and corresponding to a
theoretical delivery in January 2001 - (the "Base Period").
3.2 PROPULSION SYSTEMS BASIC PRICE
3.2.1 GENERAL ELECTRIC PROPULSION SYSTEMS
The basic price of a set of two (2) CF6-80E1A3 Propulsion
Systems including standard equipment, nacelles and thrust
reversers (the "PROPULSION SYSTEMS BASIC PRICE") is:
US Dollars
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
The Propulsion Systems Basic Price has been established in
accordance with the delivery conditions prevailing in January
2001 and has been calculated from the Propulsion Systems
Reference Price.
3.2.2 XXXXX AND XXXXXXX PROPULSION SYSTEMS
The basic price of a set of two (2) Xxxxx and Whitney 4168A
Propulsion Systems including standard equipment, nacelles and
thrust reversers (the "PROPULSION SYSTEMS BASIC PRICE") is:
US Dollars
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
The Propulsion Systems Basic Price has been established in
accordance with the delivery conditions prevailing in January
2001 and has been calculated from the Propulsion Systems
Reference Price.
3.2.3 ROLLS ROYCE PROPULSION SYSTEMS
The basic price of a set of two (2) Rolls Royce RB211-Trent
772B Propulsion Systems including standard equipment, nacelles
and thrust reversers (the "PROPULSION SYSTEMS BASIC PRICE")
is:
US Dollars
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
The Propulsion Systems Basic Price has been established in
accordance with the delivery conditions prevailing in January
2001 and has been calculated from the Propulsion Systems
Reference Price.
3.2.4 It is understood that the above-mentioned quotations as well
as Propulsion System Manufacturer's Price Revision Formulae
are based upon information received from the respective
Propulsion Systems Manufacturer and remain subject to any
modification that might be imposed by the Propulsion System
Manufacturer on the Seller and/or the Buyer
3.3 FINAL PRICE
The Final Price of each Aircraft shall be the sum of:
(i) the Airframe Basic Price as revised as of the
Delivery Date in accordance with Clause 4.1; plus
(ii) the aggregate of all increases or decreases to the
Airframe Basic Price as agreed and signed for in any
Specification Change Notice or part thereof
applicable to the Airframe subsequent to the date of
this Agreement, as revised as of the Delivery Date in
accordance with Clause 4.1; plus
(iii) the Propulsion Systems Reference Price as revised as
of the Delivery Date in accordance with Clause 4.2;
plus
(iv) the aggregate of all increases or decreases to the
Propulsion Systems Reference Price as agreed in any
Specification Change Notice or part thereof
applicable to the Propulsion Systems subsequent to
the date of this Agreement as revised as of the
Delivery Date in accordance with Clause 4.2; plus
(v) any other amount due and owing by the Buyer to the
Seller pursuant to this Agreement and/or any other
written agreement between the Buyer and the Seller
with respect to the Aircraft.
4 PRICE REVISION
4.1 REVISION OF AIRFRAME BASIC PRICE
The Airframe Basic Price is subject to revision in accordance
with the Airframe Price Revision Formula up to and including
the Delivery Date as set forth in Part 1 of Exhibit C.
4.2 REVISION OF PROPULSION SYSTEMS REFERENCE PRICE
4.2.1. The Propulsion Systems Reference Price is subject to revision
in accordance with the Propulsion Systems Price Revision
Formula up to and including the Delivery Date, as set forth in
Part 2 of Exhibit C
4.2.2 MODIFICATION OF PROPULSION SYSTEMS REFERENCE PRICE AND
PROPULSION SYSTEMS PRICE REVISION FORMULA
The Propulsion Systems Reference Price, the prices of the
related equipment and the Propulsion Systems Price Revision
Formula are based on information received from the Propulsions
Systems Manufacturer and are subject to amendment by the
Propulsion Systems Manufacturer at any time prior to the
Delivery Date. If the Propulsion Systems Manufacturer makes
any such amendment the amendment shall be incorporated into
this Agreement and the Propulsion Systems Reference Price, the
prices of the related equipment and the Propulsion Systems
Price Revision Formula shall be adjusted accordingly. The
Seller agrees to notify the Buyer as soon as it receives
notice of any such amendment from the Propulsion Systems
Manufacturer. Upon the Buyer's request, the Seller shall
provide the Buyer with documented evidence of such a change
being imposed by the Propulsion Systems Manufacturer.
5 PAYMENTS
5.1 SELLER'S ACCOUNT
The Buyer shall pay the Predelivery Payments, the Balance of
Final Price and/or any other amount due by the Buyer to the
Seller, to the Seller's account [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]with :
NATEXIS BANQUE
XX 000
00 Xxxxxx Xxxxxxxx Xxxxxxx
31005 TOULOUSE Cedex
FRANCE
or to such other account which may be established by mutual
agreement.
5.2 DEPOSIT
An amount equal to the initial deposit of US Dollars
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] per Aircraft already paid 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] shall be
deducted from the first Predelivery Payment due under this
Agreement.
5.3 PREDELIVERY PAYMENTS
5.3.1 The Buyer shall pay Predelivery Payments to the Seller
calculated on the predelivery payment reference price of each
Aircraft. The predelivery payment reference price is
determined by the following formula:
A = Pb (1 + [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT])
Where
A : The predelivery payment reference price for
Aircraft to be delivered in year T;
T : the year of delivery of the relevant
Aircraft
Pb : the Basic Price;
N : (T-2001)
5.3.2 Such Predelivery Payments shall be made in accordance with the
following schedule:
DUE DATE OF PAYMENTS PERCENTAGE OF PREDELIVERY
PAYMENT REFERENCE PRICE
Upon signature of this Agreement [CONFIDENTIAL MATERIAL
OMITTED AND FILED
On the first day of each of the SEPARATELY WITH THE
following months prior to the SECURITIES AND EXCHANGE
Scheduled Delivery Month COMMISSION PURSUANT TO A
Total Payment prior to Delivery REQUEST FOR CONFIDENTIAL
TREATMENT]
5.3.3 Any Predelivery Payment received by the Seller shall
constitute an instalment in respect of the Final Price of the
Aircraft. The Seller shall be entitled to hold and use any
Predelivery Payment as absolute owner thereof, subject only to
(i) the obligation to deduct any such Predelivery Payment from
the Final Price when calculating the Balance of Final Price or
(ii) the obligation to repay to the Buyer the Predelivery
Payments pursuant to any other Clause of this Agreement.
5.3.4 If any Predelivery Payment is not received within
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] of the relevant due date specified in
Clause 5.3.2 [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] then, and in
addition to any other rights and remedies available to Seller,
the Seller shall have the right to set back the Scheduled
Delivery Month by a period of [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
for each [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] such payment is delayed.
Furthermore, if such delay is greater than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT], the Seller shall have
no obligation to deliver the Aircraft within the Scheduled
Delivery Month as modified pursuant to the preceding
paragraph. Upon receipt of the full amount of all delayed
Predelivery Payments, together with Default Interest pursuant
to Clause 5.7, the Seller shall inform the Buyer of a new
Scheduled Delivery Month consistent with Seller's other
commitments and production capabilities.
5.4 BALANCE OF FINAL PRICE
5.4.1 The Balance of Final Price payable by the Buyer to the Seller
on the Delivery Date shall be the Final Price less the amount
of Predelivery Payments received by the Seller on or before
the Delivery Date.
5.4.2 On receipt of the Seller's invoice, once the Aircraft is Ready
for Delivery, the Buyer shall pay to the Seller the Balance of
Final Price.
5.5 OTHER CHARGES
If not expressly stipulated otherwise any other charges due
under this Agreement other than those set out in Clauses 5.2,
5.3 and 5.4 shall be paid by the Buyer at the same time as
payment of the Balance of Final Price or, if invoiced after
the Delivery Date, within [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] after the
invoice date.
5.6 METHOD OF PAYMENT
5.6.1 All payments provided for in this Agreement shall be made in
the United States Dollars (USD) in immediately available
funds.
5.6.2 All payments due to the Seller hereunder shall be made in
full, without set-off, counterclaim, deduction or withholding
of any kind. Consequently, the Buyer shall procure that the
sums received by the Seller under this Agreement shall be
equal to the full amounts expressed to be due to the Seller
hereunder, without deduction or withholding on account of and
free from any and all taxes, levies, imposts, dues or charges
of whatever nature. If the Buyer is compelled by law to make
any such deduction or withholding the Buyer shall pay such
additional amounts as may be necessary in order that the net
amount received by the Seller after such deduction or
withholding shall be equal to the amounts which would have
been received in the absence of such deduction or withholding
and pay to the relevant taxation or other authorities within
the period for payment permitted by applicable law, the full
amount of the deduction or withholding.
5.6.3 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
5.7 DEFAULT INTEREST
If any payment due to the Seller under this Agreement
including but not limited to any Predelivery Payment, deposit,
option fees for the Aircraft as well as any payment for any
spare parts, data, documents, training and services due to the
Seller, is not received on the due date, without prejudice to
the Seller's other rights under this Agreement and at law, the
Seller shall be entitled to interest for late payment
calculated on the amount due from and including the due date
of payment up to and including the date when the payment is
received by the Seller at a rate equal to the London Interbank
Offered Rate (LIBOR) for [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] deposits in
US Dollars (as published in the Financial Times on the due
date) plus [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] per year (part year to be
prorated). All such interest shall be compounded monthly and
calculated on the basis of the actual number of days elapsed
in the month assuming a thirty (30) day month and a three
hundred and sixty (360) day year.
5.8 TAXES
5.8.1 The amounts stated in this Agreement to be payable by the
Buyer are exclusive of value added tax ("VAT") chargeable
under the laws of the Delivery Location and accordingly the
Buyer shall pay any VAT chargeable in respect of supplies to
the Buyer as contemplated by this Agreement. Currently no VAT
is chargeable to the Buyer pursuant to this Agreement, but
should VAT become so chargeable and the applicable legislation
enable the Buyer to claim an exemption or reimbursement in
respect thereof, the Seller shall assist the Buyer upon
request with the application by the Buyer to the relevant
authorities.
5.8.2 The Seller shall pay all other taxes, duties or similar
charges of any nature whatsoever levied, assessed, charged or
collected for or in connection with the fabrication,
manufacture, assembly, sale and delivery under this Agreement
of any of the Aircraft, services, instructions and data
delivered or furnished hereunder provided such charges have
been promulgated and are enforceable under the laws of the
Delivery Location.
5.8.3 The Buyer shall bear the costs of and pay any and all taxes,
duties or similar charges of any nature whatsoever not assumed
by the Seller under Clause 5.8.2 including but not limited to
any duties or taxes due upon or in relation to the importation
or registration of the Aircraft in the Buyer's country and/or
any withholdings or deductions levied or required in the
Buyer's country in respect of the payment to the Seller of any
amount due by the Buyer hereunder. In no event shall KLM be
responsible for Seller's corporation, income or capital gains
taxes imposed by the jurisdiction of the Seller's
incorporation and (where different) the jurisdiction where the
Seller is principally resident for tax purposes.
5.9 SET-OFF
The Buyer and the Seller hereby agree that should any amount
(whether under this Agreement or under any other agreement
between the Buyer and the Seller or any of its asset
management or financing affiliates) not be paid in full in
immediately available funds on the date due, then the Seller,
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT], will have the right to debit and
apply, in whole or in part, the unused amount of any credit
made available by the Seller to the Buyer against such unpaid
amount. The Seller will promptly notify the Buyer in writing
after such debiting and application.
6 MANUFACTURE PROCEDURE -- INSPECTION
6.1. MANUFACTURE PROCEDURE
The Airframe shall be manufactured in accordance with the
relevant requirements of the laws of the jurisdiction of
incorporation of the relevant Member as enforced by the
Aviation Authority of such jurisdiction.
6.2 INSPECTION
6.2.1 Subject to providing the Seller with certificates evidencing
compliance with the insurance requirements set forth in Clause
19, the Buyer or its duly authorised representatives (the
"Buyer's INSPECTOR(S)") shall be entitled to inspect the
manufacture of the Airframe, documentation and all materials
and parts obtained by the Seller for the manufacture of the
Airframe on the following terms and conditions;
(i) any inspection shall be made according to a procedure
to be agreed upon between the Buyer and the Seller but
shall be conducted pursuant to the Seller's own system
of inspection as developed under the supervision of and
approved by the relevant Aviation Authority.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT]
(ii) the Buyer's Inspector(s) shall have access to such
relevant technical data as is reasonably necessary for
the purpose of the inspection;
(iii) any inspection and any related discussions with the
Seller and other relevant personnel by the Buyer's
Inspector(s) shall be at reasonable times during
business
hours (or outside of business hours if appropriate
and mutually agreed) and shall take place in the
presence of relevant inspection department personnel
of Seller;
(iv) the inspections shall be performed in a manner not to
unduly delay or hinder the manufacture or assembly of
the Aircraft or the performance of this Agreement by
the Seller or any other work in progress at the
Manufacture Facilities.
6.2.2 LOCATION OF INSPECTIONS
The Buyer's Inspector(s) shall be entitled to conduct any such
inspection at the relevant Manufacture Facility of the Seller
or the Members and where possible at the Manufacture
Facilities of the sub-contractors provided that if access to
any part of the Manufacture Facilities where the Airframe
manufacture is in progress or materials or parts are stored
are restricted for security or confidentiality reasons, the
Seller shall be allowed reasonable time to make the relevant
items available elsewhere.
6.3 SELLER'S SERVICE FOR BUYER'S INSPECTOR(S)
For the purpose of the inspections, and commencing with the
date of this Agreement until the Delivery Date of the last
Aircraft, the Seller shall furnish without additional charge
suitable space and office equipment in or conveniently located
with respect to the Delivery Location for the use of a
reasonable number of Buyer's Inspector(s).
7 CERTIFICATION
7.1 TYPE CERTIFICATION
The Aircraft has been type certificated under Joint Aviation
Authorities (JAA) procedures for joint certification in the
transport category. The Seller has obtained the relevant type
certificate (the "TYPE CERTIFICATE") to allow the issuance of
the Export Airworthiness Certificate.
7.2 EXPORT AIRWORTHINESS CERTIFICATE
7.2.1 The Aircraft shall be delivered to the Buyer with an Export
Airworthiness Certificate.
7.2.2 If, any time before the date on which the Aircraft is Ready
for Delivery, any law or regulation is enacted, promulgated,
becomes effective and/or an interpretation of any law or
regulation is issued which requires any change to the
Specification for the purposes of obtaining the Export
Airworthiness Certificate (a "CHANGE IN LAW"), the Seller
shall make the required variation or modification and the
parties hereto shall sign a Specification Change Notice which
specifies the effects, if any, upon the guaranteed
performances, weights, interchangeability, time of Delivery,
price of the Aircraft and text of the Specification.
7.2.3 The Seller shall as far as practicable (but in its sole
discretion and without prejudice to Clause 7.3.1 (ii)) take
into account the information available to it concerning any
proposed law, regulation or interpretation which could become
a Change in Law in order to minimise the costs of changes to
the Specification as a result of such proposed law regulation
or interpretation becoming effective prior to the Aircraft
being Ready for Delivery. The Seller shall consult with the
Buyer before taking the appropriate steps relating thereto.
7.3 COSTS OF SCNS FOR CERTIFICATION
7.3.1 The costs of implementing the variation or modification
referred to at Clause 7.2.2 above shall be
(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]
7.3.2. Notwithstanding the provisions of sub-Clauses 7.3.1 (i) and
(ii), if the Change in Law relates to the Propulsion Systems
and in particular to engine accessories, quick engine change
units or thrust reversers, the costs shall be dealt with in
accordance with such arrangements as may be made separately
between the Buyer and the Propulsion Systems Manufacturer. The
Seller shall however keep the Buyer informed of any
contemplated change relating to the Propulsion Systems, that
the Seller becomes aware of.
7.4 VALIDATION OF THE EXPORT AIRWORTHINESS CERTIFICATE
7.4.1 The Seller shall assist the Buyer in obtaining the validation
of the Export Airworthiness Certificate by the Buyer's
Aviation Authority.
7.4.2 Where the Buyer's Aviation Authority requires a modification
to comply with additional import aviation requirements and/or
supply of additional data prior to the issuance of the Export
Airworthiness Certificate, the Seller shall incorporate such
modification and/or provide such data at costs to be borne
bythe Buyer. The parties shall sign a Specification Change
Notice which specifies the effects, if any, upon the
guaranteed performances, weights, interchangeability,
maintenance and/or operation, time of Delivery and price of
the Aircraft.
8 BUYER'S TECHNICAL ACCEPTANCE
8.1 TECHNICAL ACCEPTANCE PROCESS
8.1.1 Prior to Delivery the Aircraft shall undergo a technical
acceptance process, proposed by the Seller and agreed with the
Buyer (the "Technical Acceptance Process"). The Technical
Acceptance Process may also include mutually agreed additions,
suggestions or amendments which have been reasonably requested
by the Buyer. Completion of the Technical Acceptance Process
shall demonstrate the satisfactory functioning of the Aircraft
and shall be deemed to demonstrate compliance with the
Specification in line with good industry practice. Upon
Delivery of the Aircraft, the Seller shall provide the Buyer
with the agreed documents set out in Exhibit J. Should it be
established that the Aircraft does not comply with the
Technical Acceptance Process requirements, the Seller shall
without hindrance from the Buyer be entitled to carry out any
necessary changes and, as soon as practicable thereafter,
resubmit the Aircraft to such further Technical Acceptance
Process. In the event that Delivery of an Aircraft is delayed
due to such changes being carried out, the provisions of
Clause 10 or Clause 11 shall apply, as the case may be.
In the event that the non compliance with the Technical
Acceptance Process is such that it does not prevent the
Certificate of Airworthiness to be issued, the Buyer may elect
to have the Aircraft delivered, and such non compliance
rectified at a mutually agreed later date.
8.1.2 The Technical Acceptance Process shall:
(i) commence on a date notified by the Seller to the Buyer
pursuant to Clause 9.1.3. In the event that there is a
change in the Technical Acceptance Process programme
thus notified to the Buyer, the Seller shall always
ensure that it has given the Buyer a minimum of
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT] notice prior to
the start of the Technical Acceptance Process;
(ii) take place at the Delivery Location;
(iii) be carried out by the personnel of the Seller and, if
the Buyer elects to attend the Technical Acceptance
Process in accordance with the provisions of Clause
8.2.2, in the presence of the Buyer;
(iv) include a technical acceptance flight which shall
enable the Buyer to check the Aircraft, and which shall
not normally exceed a period of [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT], unless otherwise mutually
agreed.
8.2 BUYER'S ATTENDANCE
8.2.1 The Buyer shall be entitled to attend the Technical Acceptance
Process.
8.2.2 If the Buyer attends the Technical Acceptance Process, the
Buyer;
(i) shall co-operate in complying with the reasonable
requirements of the Seller with the intention of
completing the Technical Acceptance Process within
seven (7) business days after its commencement;
(ii) may have a maximum of [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] of the Buyer's representatives, unless
otherwise mutually agreed (with no more than three (3)
such representatives, having access to the cockpit at
any one time) accompany the Seller's representatives on
a technical acceptance flight and during such flight
the Buyer's representatives shall comply with the
instructions of the Seller's representatives.
8.2.3 If the Buyer does not attend and/or fails to co-operate in the
Technical Acceptance Process, the Seller shall be entitled to
complete the Technical Acceptance Process and the Buyer shall
be deemed to have accepted the Technical Acceptance Process as
satisfactory in all respects.
8.2.4.1 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
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CONFIDENTIAL TREATMENT]
8.2.4.2 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
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CONFIDENTIAL TREATMENT]
8.3 CERTIFICATE OF ACCEPTANCE
Upon successful completion of the Technical Acceptance
Process, the Buyer shall, on or before the Delivery Date, sign
and deliver to the Seller a certificate of acceptance in
respect of the Aircraft in the form of Exhibit D (the
"CERTIFICATE OF ACCEPTANCE").
8.4 AIRCRAFT UTILISATION
The Seller shall, without payment or other liability, be
entitled to use the Aircraft prior to Delivery as may be
necessary to obtain the certificates required under Clause 7,
and such use shall not prejudice the Buyer's obligation to
accept Delivery of the Aircraft hereunder.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
9 DELIVERY
9.1 DELIVERY SCHEDULE
9.1.1 Subject to Clauses 2, 7, 8, 10 and 18, the Seller shall have
the Aircraft Ready for Delivery at the Delivery Location
within the following months:
Aircraft N(degree) 1 [CONFIDENTIAL MATERIAL OMITTED AND FILED
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PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Aircraft N(degree) 2 [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Aircraft N(degree) 3 [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Aircraft N(degree) 4 [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Aircraft N(degree) 5 [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Aircraft N(degree) 6[CONFIDENTIAL MATERIAL OMITTED AND FILED
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PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Each of such months shall be, with respect to the
corresponding Aircraft, the "SCHEDULED DELIVERY MONTH".
The Buyer has indicated that it wishes to have Aircraft
N(degree) 2, 3, 5 and 6 delivered [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT].
The Seller is not currently in a position to provide such
delivery dates, but the Buyer and the Seller have agreed to
review the situation in [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT].
9.1.2 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
9.1.3 Approximately [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] prior to the
Scheduled Delivery Month, the Seller shall provide the Buyer
with a tentative delivery schedule including the technical
Acceptance Process schedule, and the anticipated date on which
the Aircraft is expected to be Ready for Delivery, which,
unless amended by a notification not more than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] later, shall be deemed to be confirmed as the
delivery schedule of the relevant Aircraft.
9.2 DELIVERY
9.2.1 The Buyer shall send its representatives to the Delivery
Location to take Delivery of, and collect, the Aircraft within
seven (7) business days after the date on which the Aircraft
is Ready for Delivery and shall pay the Balance of the Final
Price on or before the Delivery Date.
9.2.2 The Seller shall deliver and transfer title to the Aircraft
free and clear of all encumbrances to the Buyer provided that
the Balance of the Final Price has been paid by the Buyer
pursuant to Clause 5.4 and that the Certificate of Acceptance
has been signed and delivered to the Seller pursuant to Clause
8.3. The Seller shall provide the Buyer with a xxxx of sale in
the form of Exhibit E (the "XXXX OF SALE") and/or such other
documentation confirming transfer of title and receipt of the
Final Price as may reasonably be requested by the Buyer. Title
to, property in and risk of loss or damage to the Aircraft
shall be transferred to the Buyer on Delivery.
9.2.3 Should the Buyer fail to
(i) deliver the signed Certificate of Acceptance to the
Seller within the delivery period as defined in Clause
9.2.1, despite the Aircraft being Ready for Delivery;
or
(ii) pay the Balance of the Final Price for the Aircraft to
the Seller within the above defined period
then the Buyer shall be deemed to have rejected delivery of
the Aircraft without warrant when duly tendered to it
hereunder. In addition to Clause 5.7 and the Seller's other
rights under this Agreement, the Seller shall retain title to
the Aircraft but the Buyer shall indemnify
and hold the Seller harmless against any and all costs
relating directly to such rejected delivery (including but not
limited to any parking, storage, and insurance costs).
9.3 FLY AWAY
9.3.1 The Buyer and the Seller shall co-operate to obtain any
licenses which may be required by the Aviation Authority of
the Delivery Location for the purpose of exporting the
Aircraft.
9.3.2 All expenses of, or connected with, flying the Aircraft from
the Delivery Location after Delivery 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]. The Seller shall
cooperate with the Buyer in making arrangements with the
supplying companies for the fuel and oil as well as other
arrangements such as customs clearance, catering etc. as may
be necessary for all post-Delivery flights.
10 EXCUSABLE DELAY
10.1 The Buyer acknowledges that the Aircraft (is) (are) to be
manufactured by Seller in performance of this Agreement and
that the Scheduled Delivery Month (s) (is) (are) based on the
assumption that there shall be no delay due to causes beyond
the control of the Seller. Accordingly, Seller shall not be
responsible for any delay in the Delivery of the Aircraft or
delay or interruption in the performance of the other
obligations of the Seller hereunder due to causes beyond its
control, and not occasioned by its fault or negligence
(including but without limitation - provided they satisfy the
foregoing test - acts of God or the public enemy, war, civil
war, warlike operations, terrorism, insurrections or riots,
fires, explosions, natural disasters, compliance with any
applicable foreign or domestic governmental regulation or
order, labour disputes causing cessation, slowdown or
interruption of work, inability after due and timely diligence
to procure materials, equipment or parts, general hindrance in
transportation or failure of a sub-contractor or supplier to
furnish materials, equipment or parts). Any delay or
interruption resulting from any of the foregoing causes is
referred to as an "EXCUSABLE DELAY".
10.2 If an Excusable Delay occurs:
(i) the Seller shall notify the Buyer of such Excusable
Delay as soon as practicable after becoming aware of
the same and shall inform the Buyer of the measures and
remedies taken to cure the cause and mitigate the
duration and effect of any delay;
(ii) the Seller shall not be responsible for any damages
arising from or in connection with such Excusable Delay
suffered or incurred by the Buyer;
(iii) the Seller shall not be deemed to be in default in
the performance of its obligations hereunder as a
result of such Excusable Delay; and
(iv) the Seller shall as soon as practicable after the
removal of the cause of the delay resume performance
of its obligations under this Agreement and in
particular shall notify to the Buyer the revised
Scheduled Delivery Month;
(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]
10.3 TERMINATION ON EXCUSABLE DELAY
10.3.1 If the Delivery of any Aircraft is delayed as a result of an
Excusable Delay for a period of more than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] months after the last day of the Scheduled Delivery
Month then either party may terminate this Agreement with
respect to the Aircraft so affected by
giving written notice to the other party within [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] days after the expiry of such [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] month period.
10.3.2 If the Seller concludes that the Delivery of any Aircraft
shall be delayed for more than [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
months after the last day of the Scheduled Delivery Month due
to an Excusable Delay and as a result thereof reschedules
Delivery of such Aircraft to a date or month reflecting such
delay then the Seller shall promptly notify the Buyer in
writing to this effect and shall include in such notification
the new Scheduled Delivery Month. Either party may thereupon
terminate this Agreement with respect to such Aircraft by
giving written notice to the other party within [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] days after receipt by the Buyer of the notice of
anticipated delay.
10.3.3 If this Agreement shall not have been terminated with respect
to the delayed Aircraft during the [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
day period referred to in either Clause 10.3.1 or 10.3.2
above, then the Seller shall be entitled to reschedule
Delivery and the new Scheduled Delivery Month shall be
notified to the Buyer and shall be binding on the parties.
10.4 TOTAL LOSS, DESTRUCTION OR DAMAGE
If prior to Delivery, any Aircraft is lost, destroyed or in
the reasonable opinion of the Seller is damaged beyond repair
("TOTAL LOSS"), the Seller shall notify the Buyer promptly to
this effect and in any event not later than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] after such occurrence. The Seller shall include in
said notification (or as soon after the issue of the notice as
such information becomes available to the Seller) the earliest
date consistent with the Seller's other commitments and
production capabilities that an aircraft to replace the
Aircraft may be delivered to the Buyer and the Scheduled
Delivery Month shall be extended as specified in the Seller's
notice to accommodate the delivery of the replacement aircraft
: provided, however, that in the event the specified extension
of the Scheduled Delivery Month to a month is exceeding
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] then this Agreement shall terminate
with respect to said Aircraft unless:
(i) the Buyer notifies the Seller within one (1) month of
the date of receipt of the Seller's notice that it
desires the Seller to provide a replacement aircraft
during the month quoted in the Seller's notice; and
(ii) the parties execute an amendment to this Agreement
recording the variation in the Scheduled Delivery
Month;
provided, however, that nothing herein shall require the
Seller to manufacture and deliver a replacement aircraft if
such manufacture would require the reactivation of its
production line for the model or series of aircraft which
includes the Aircraft purchased hereunder.
10.5 TERMINATION RIGHTS EXCLUSIVE
In the event that this Agreement shall be terminated as
provided for under the terms of Clauses 10.3 or 10.4, such
termination shall discharge all obligations and liabilities of
the parties hereunder with respect to such affected Aircraft
and undelivered material, services, data or other items
applicable thereto and to be furnished hereunder and neither
party shall have any claim against the other for any loss
resulting from such non-delivery. The Seller shall in no
circumstances have any liability whatsoever for Excusable
Delay other than as set
forth in this Clause 10, [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
11 NON-EXCUSABLE DELAY
11.1 LIQUIDATED DAMAGES
11.1.1 Should any of the Aircraft not be Ready for Delivery to the
Buyer within [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] after the
last day of the Scheduled Delivery Month (as varied by virtue
of Clauses 2, 7 and 10) (the "DELIVERY PERIOD") and such delay
is not as a result of an Excusable Delay or Total Loss (a
"NON-EXCUSABLE DELAY"), then the Buyer shall have the right to
claim, and the Seller shall pay by way of liquidated damages
to the Buyer US Dollars [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
11.1.2 The amount of such liquidated damages shall in no event exceed
the total of US Dollars [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] in respect
of any one Aircraft.
11.1.3 The Buyer shall submit a claim for liquidated damages not
later than one (1) month after the last day of the month
following the Scheduled Delivery Month, and thereafter at the
end of each month during which the delay continues. The Seller
shall pay promptly such liquidated damages upon receiving such
demand from the Buyer.
11.1.4 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
11.2 RE-NEGOTIATION
If as a result of Non-Excusable Delay, Delivery does not occur
in the period falling [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] months after
the Delivery Period, the Buyer shall have the right
exercisable by written notice to the Seller given not less
than [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT] nor more than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] after the expiration of the [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
months falling after the Delivery Period to require from the
Seller a re-negotiation of the Scheduled Delivery Month for
the affected Aircraft. Unless otherwise agreed between the
Seller and the Buyer during such re-negotiation, the said
re-negotiation shall not prejudice the Buyer's right to
receive liquidated damages in accordance with Clause 11.1
during the period of Non-Excusable Delay.
11.3 TERMINATION
If as a result of Non-Excusable Delay, Delivery does not occur
in the period falling [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] months after
the Delivery Period and the parties have not renegotiated the
Delivery Date pursuant to Clause 11.2, either party shall have
the right exercisable by written notice to the other party,
given not less than one (1) month nor more than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] months after expiration of such [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] months to terminate this Agreement in respect of
the affected Aircraft and neither party shall have any claim
against the other in respect of such nondelivery [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
11.4 LIMITATION OF DAMAGES
The Buyer and the Seller agree that payment by the Seller of
the amounts due pursuant to Clause 11.1 shall be considered to be liquidated
damages and has been calculated to compensate the Buyer for its entire damages
for all losses of any kind due to Non-Excusable Delay, without prejudice to the
Buyer's right of termination as per Clause 11.3 above. The Seller shall not in
any circumstances have any liability whatsoever for Non Excusable Delay other
than as set forth in this Clause 11.
12 WARRANTIES AND SERVICE LIFE POLICY
This Clause covers the terms and conditions of the warranty
and service life policy.
12.1 STANDARD WARRANTY
12.1.1 NATURE OF WARRANTY
Subject to the conditions and limitations as hereinafter
provided for and except as provided for in Clause 12.1.2, the
Seller warrants to the Buyer that each Aircraft and all
Warranted Parts as defined hereinafter shall at 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 the selection of materials) having regard
to the state of the art [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] at the date of such design;
and
(iv) be free from defects arising from failure to conform
to the Specification, except to those portions of the
Specification relating to performance or where it is
expressly stated that they are estimates,
approximations or design aims.
For the purpose of this Agreement the term "WARRANTED PART"
shall mean any Seller proprietary component, equipment,
accessory or part as installed on an Aircraft at Delivery of
such Aircraft and
(a) which is manufactured to the detailed design of the
Seller or a subcontractor of the Seller and
(b) which bears a part number of the Seller at the time
of such delivery.
12.1.2 EXCLUSIONS
The warranties set forth in Clause 12.1.1 shall not apply to
Buyer Furnished Equipment, nor to the Propulsion Systems, nor
to any component, equipment, accessory or part purchased by
the Seller that is not a Warranted Part except that:
(i) any defect in the Seller's workmanship incorporated
in the installation of such items in the Aircraft,
including any failure by the Seller to conform to the
installation instructions of the manufacturer of such
item that invalidates any applicable warranty from
such manufacturer, shall constitute a defect in
workmanship for the purpose of this Clause and be
covered by the warranty set forth in sub-Clause
12.1.1 (ii) ; and
(ii) any defect inherent in the Seller's design of the
installation, in view of the state of the art at the
date of such design, which impair the use of such
item shall constitute a defect in design for the
purpose of this Clause and be covered by the warranty
set forth in sub-Clause 12.1.1 (iii).
12.1.3 WARRANTY PERIOD
The warranties contained in Clauses 12.1.1 and 12.1.2 shall be
limited to those defects which 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 ("WARRANTY PERIOD").
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 Clauses 12.1.1 and 12.1.2 are limited to the repair,
replacement or correction of any Warranted Part which is
defective or to the supply of modification kits rectifying the
defect, at the Seller's expense and option. Whenever
applicable, the Seller option shall take into consideration the
Buyer's constraints. The labour required to install such kit
will be reimbursed by the Seller at the Inhouse Warranty Labour
Rate defined in Clause 12.1.7 (v).
The Seller may equally at its option furnish a credit to the
Buyer equal to the price at which the Buyer is entitled to
purchase a replacement for the defective Warranted Part, if
such Warranted Part is readily available for purchase.
12.1.4.2 In the event of a defect covered by sub-Clauses 12.1.1 (iii),
12.1.1 (iv) and 12.1.2 (ii) becoming apparent within the
Warranty Period and the Seller being obliged to correct such
defect, the Seller shall also, if so requested by the Buyer,
make such correction in any Aircraft which has not yet been
delivered to the Buyer; provided, however,
(i) that the Seller, [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT], 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 the performance
of this Agreement due to the Seller's undertaking to
make such correction and provided further
(ii) that, rather than accept a delay in the 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.
(iii) [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT].
12.1.4.3 In addition to the remedies set forth in Clauses 12.1.4.1 and
12.1.4.2, the Seller shall reimburse the [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
spent by the Buyer in performing inspections of the Aircraft to
determine whether or not a defect exists in any Warranted Part
within the Warranty Period or until the corrective technical
solution removing the need for the inspection is available and
could reasonably be introduced by the Buyer. The above
commitment is subject to the following conditions:
(i) such inspections are recommended by a Seller Service
Bulletin to be performed within the Warranty Period;
(ii) the inspection is [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] performed
outside of a scheduled maintenance check as
recommended by the Seller's Maintenance Planning
Document, [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT];
(iii) the reimbursement shall not apply for any inspections
performed as an alternative to accomplishing
corrective action when such corrective action has
been made available to the Buyer and such corrective
action could have reasonably been accepted by the
Buyer or, (provided that the solution presented by
the Seller is satisfactory for the Buyer)
accomplished by the Buyer at the time such
inspections are performed or earlier,
(iv) the labor rate to be used for the reimbursement shall
be labor rate defined in Clause 12.1.7, and
(v) the manhours used to determine such reimbursement
shall not exceed the Seller's reasonable estimate of
the manhours required by the Buyer for such
inspections or if so the Seller will perform the
inspections upon conditions to be mutually agreed.
12.1.5 WARRANTY CLAIM REQUIREMENTS
Each Buyer's warranty claim ("WARRANTY CLAIM") shall be
considered by the Seller only if the following conditions are
first fulfilled:
(i) the defect having become apparent within the Warranty
Period ;
(ii) the Buyer having submitted to the Seller proof
reasonably satisfactory to the Seller that the
claimed defect is due to a matter embraced within
this Clause 12.1, and that such defect has not
resulted from any act or omission of the Buyer,
including but not limited to, any failure to operate
and maintain the affected Aircraft or part thereof in
accordance with the standards set forth or any matter
covered in Clause 12.1.10 ;
(iii) the Buyer having either reviewed the Warranted Part
with the Seller's Representative, or returned as soon
as practicable the Warranted Part claimed to be
defective to the repair facilities as may be
designated by the Seller, except when the Buyer
elects to repair a defective Warranted Part in
accordance with the provisions of Clause 12.1.7.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
(iv) the Seller having received a Warranty Claim as set
forth in Clause 12.1.6.
12.1.6 WARRANTY ADMINISTRATION
The warranties set forth in Clause 12.1 shall be administered
as hereinafter provided for:
(i) CLAIM DETERMINATION
Warranty Claim determination by the Seller shall be
reasonably based upon the claim details, reports from
the Seller's local representative, historical data
logs, inspection, tests, findings during repair,
defect analysis and other suitable documents.
(ii) TRANSPORTATION COSTS
[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 of the Buyer desiring 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 subject to this Clause
12.1 may justify the dispatch by the Seller of a
working team to repair or correct such defect
through the embodiment of one or several Seller's
Service Bulletins at the Buyer's facilities, or in
the event of the Seller accepting the return of an
Aircraft to perform or have performed such repair
or correction, then the labor costs for such
on-Aircraft work are to be borne by the Seller.
The conditions which have to be fulfilled for
on-Aircraft work by the Seller is that (i) in the
opinion of the Seller, the work necessitates the
technical expertise of the Seller as manufacturer
of the Aircraft, or that (ii) the work, for reasons
beyond the Buyer's control, cannot be accomplished
by the Buyer.
If said condition is fulfilled and 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 made
under this Clause 12.1, the Buyer shall file a
Warranty Claim on a form selected by the Buyer
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
after a defect became apparent. Such form must
contain at least the following data :
a) description of defect and action taken, if any,
b) date of incident and/or removal date,
c) description of the defective part,
d) part number,
e) serial number (if applicable),
f) position on Aircraft,
g) total flying hours or calendar time, as
applicable at the date of defect appearance,
h) time since last shop visit at the date of defect
appearance,
i) manufacturer serial number ("Manufacturer's
Serial Number") of the Aircraft and/or its
registration,
j) Aircraft total flying hours and/or
number of landings at the date of defect
appearance,
k) Warranty Claim number,
l) date of Warranty Claim,
m) delivery date of Aircraft or part to the Buyer,
Warranty Claims are to be addressed as follows:
AIRBUS
CUSTOMER SERVICES DIRECTORATE
WARRANTY ADMINISTRATION
Rond-Point Xxxxxxx Xxxxxxxx
X.X. 00
X-00000 XXXXXXX XXXXX
XXXXXX
(vi) REPLACEMENTS
Components, equipment, accessories or parts, which
the Seller has replaced pursuant to this Clause,
shall become the Seller's property. The replacement
components, equipment, accessories or parts
provided by the Seller to the Buyer pursuant to
this Clause shall become the Buyer's property.
(vii) SELLER'S REJECTION
The Seller shall provide reasonable written
substantiation in case of rejection of a Warranty
Claim. In such event the Buyer shall [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
(viii) SELLER'S INSPECTION
The Seller shall have the right to inspect the
affected Aircraft and documents and other records
directly relating to the Warranty Claim in the
event of any Warranty Claim under this Clause 12.1,
provided such inspection does not cause disruption
in the Aircraft operation.
12.1.7 INHOUSE WARRANTY
(i) SELLER'S AUTHORIZATION
The Seller hereby authorizes the Buyer to perform
the repair of Warranted Parts ("INHOUSE WARRANTY")
subject to the terms of this Clause 12.1.7.
(ii) CONDITIONS FOR SELLER'S AUTHORIZATION
The Buyer shall be entitled to repair such
Warranted Parts only:
- if where practicable the Buyer notifies the
Seller's Representative of its intention to
perform Inhouse Warranty repairs before any
such repairs are started where the estimated
cost of such repair is in excess of US
Dollars [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT] The Buyer's
notification shall include sufficient detail
regarding the defect, estimated labor hours
and material to allow the Seller to
ascertain the reasonableness of the
estimate. The Seller agrees to use all
reasonable efforts to ensure a prompt
response and shall not unreasonably withhold
authorization;
- if adequate facilities and qualified
personnel are available to the Buyer;
- in accordance with the Seller's written
instructions set forth in the applicable
Seller's technical documentation;
- 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 Clause 12.1.10.
(iii) SELLER'S RIGHTS
The Seller shall have the right to have any
Warranted Part, or any part removed therefrom,
claimed to be defective, returned to the Seller, as
set forth in sub-Clause 12.1.6 (ii) if, in the
judgement of the Seller, the nature of the defect
requires technical investigation. The Seller shall
further have the right to have a representative
present during the disassembly, inspection and
testing of any Warranted Part claimed to be
defective, subject to its presence being practical
and not unduly delaying the repair.
(iv) INHOUSE WARRANTY CLAIM SUBSTANTIATION
Claims for Inhouse Warranty credit shall contain
the same information as that required for Warranty
Claims under sub-Clause 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),
- parts description,
- quantity of parts,
- unit price of parts,
- total price of parts,
c) number of spent labor hours,
d) Inhouse Warranty Labor Rate,
e) total claim value.
(v) CREDIT
The Buyer's account shall be credited with an
amount equal to the mutually agreed direct labor
costs expended in performing the off-Aircraft
repair of a Warranted Part and to the direct costs
of materials incorporated in said repair.
- For the determination of direct labor costs
only manhours spent on disassembly,
inspection, repair, reassembly, and final
inspection and test of the Warranted Part
are permissible. Any manhours required for
maintenance work concurrently being carried
out on the Aircraft or Warranted Part are
not included.
- The manhours permissible above shall be
multiplied by an agreed labor rate of US
Dollars [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT], e.c. January
2002 ("INHOUSE WARRANTY LABOUR RATE").
- Direct material costs are determined by the
prices at which the Buyer acquired such
material, excluding any parts and materials
used for overhaul and as may be furnished by
the Seller at no charge.
(vi) LIMITATION
The Buyer shall in no event be credited for repair
costs (including labor and material) in excess of
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
of the current catalogue price for a replacement of
the defective Warranted Part, unless the scheduled
operation of the Aircraft dictates to commence the
repair,
or
where the repair cost (including labor and
material) is in excess of US Dollars [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] unless
previously approved by the Seller in accordance
with sub-Clause 12.1.7 (ii).
(vii) SCRAPPED MATERIAL
The Buyer shall retain any defective Warranted Part
beyond economic repair and any defective part
removed from a Warranted Part during repair for a
period of either [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] after the date of completion of repair
or [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
Inhouse Warranty credit relating thereto, whichever
is longer. 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. [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
Notwithstanding the foregoing, the Buyer may scrap
any such defective parts [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] which are beyond economic
repair and not required for technical evaluation
locally without the agreement of the Seller's local
representative unless the Seller has requested the
return of such part within [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] after submission of the
Warranty Claim, and the Buyer may scrap any such
defective part [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] which are beyond economic repair and not
required for technical evaluation locally with the
agreement of the Seller's local representative.
Scrapped Warranted Parts shall be evidenced by a
record of scrapped material certified by an
authorized representative of the Buyer.
12.1.8 STANDARD WARRANTY TRANSFERABILITY
The warranties provided for in this Clause 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 airlines and the
Buyer, in accordance with the terms and subject to the
limitations and exclusions of the foregoing warranties, and to
the extent permitted by any applicable law or regulations.
12.1.9 WARRANTY FOR CORRECTED, REPLACED OR REPAIRED WARRANTED PARTS
Whenever any Warranted Part which contains a defect for which
the Seller is liable under Clause 12.1 has been corrected,
replaced or repaired pursuant to the terms of this Clause 12.1,
the period of the Seller's warranty with respect to such
corrected, replaced or repaired Warranted Part whichever may be
the case, shall be the remaining portion of the original
warranty [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
12.1.10 ACCEPTED INDUSTRY STANDARD PRACTICES - NORMAL WEAR AND TEAR
The Buyer's rights under this Clause 12.1 are subject to the
Aircraft and each component, equipment, accessory and part
thereof being maintained, overhauled, repaired, and operated in
accordance with accepted industry standard practices, all
technical documentation and any other instructions issued by
the Seller and the Suppliers and the Propulsion Systems
Manufacturer and all applicable rules, regulations and
directives of relevant Aviation Authorities.
12.1.10.1 The Seller's liability under this Clause 12.1 shall not extend
to normal wear and tear nor to:
(i) any Aircraft or component, equipment, accessory or
part thereof which has been repaired, altered or
modified after Delivery except by the Seller or in
a manner approved by the Seller;
(ii) any Aircraft or component, equipment, accessory or
part thereof which has been operated in a damaged
state of which the Buyer acting reasonably should
have been aware; this requirement will not be
applicable if the condition becomes known during a
flight and the operation continued for reasons of
airworthiness or flight safety;
(iii) any component, equipment, accessory and part from which
the trademark, name, part or serial number or other
identification marks have been removed;
12.2 SELLER SERVICE LIFE POLICY
12.2.1 In addition to the warranties set forth in Clause 12.1, the
Seller further agrees that should any item listed in Exhibit "F"
("ITEM") sustain any breakage or defect which materially impairs
the utility of the Item ("FAILURE"), and subject to the general
conditions and limitations set forth in Clause 12.2.4, then the
provisions of this Clause 12.2 ("SELLER SERVICE LIFE POLICY")
shall apply.
12.2.2 PERIODS AND SELLER'S UNDERTAKINGS
The Seller agrees that if a Failure occurs in an Item before the
Aircraft in which such Item has been originally installed has
completed [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT] flight cycles, or within
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] after the Delivery of said Aircraft to
the Buyer, whichever shall first occur, the Seller shall at its
own discretion and as promptly as practicable and with the
Seller's financial participation as hereinafter provided either:
12.2.2.1 design and furnish to the Buyer a correction for such Item with a
Failure and provide any parts required for such correction
(including Seller designed standard parts but excluding industry
standard parts), or,
12.2.2.2 replace such Item.
12.2.3 SELLER'S PARTICIPATION IN THE COSTS
Any part or Item which the Seller is required to furnish to the
Buyer under this Service Life Policy in connection with the
correction or replacement of an Item shall be furnished to the
Buyer with the Seller's financial participation determined in
accordance with the following formula:
P = C (N - T)/N
where :
P : financial participation of the Seller,
C : Seller's then current sales prices for the required
Item or Seller designed parts,
(i) T : total number of flight cycles which have been
accumulated by the Aircraft in which the Item
subject to a Failure has been originally
installed, and,
N :[CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT], or,
(ii) T : total time in months since Delivery of the
Aircraft in which the Item subject to a Failure
has been originally installed, and,
N :[CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT],
which ever of the foregoing sub-clauses (i), or (ii) yields the
lowest ratio of :
(N - T)/N
12.2.4 GENERAL CONDITIONS AND LIMITATIONS
12.2.4.1 The undertakings given in this Clause 12.2 shall be valid after
the period of the Seller's warranty applicable to an Item under
Clause 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 the prior
compliance by the Buyer with the following conditions:
(i) the Buyer shall maintain log books and other
historical records as required by the Aviation
Authorities with respect to each Item adequate to
enable determination of whether the alleged Failure
is covered by this Service Life Policy and if so to
define the costs to be borne by the Seller in
accordance with Clause 12.2.3;
(ii) the Buyer shall keep the Seller informed of any
significant incidents relating to an Aircraft
howsoever occurring or recorded;
(iii) the Buyer shall comply with the conditions of
Clause 12.1.10;
(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 as compatible as possible
with the Buyer's operational requirements.
(v) in the case of any breakage or defect, the Buyer
must have reported the same in writing to the
Seller within [CONFIDENTIAL MATERIAL OMITTED AND
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 have
informed the Seller of the breakage or defect in
sufficient detail 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 for in this Clause 12.2, any claim
under this Service Life Policy shall be administered as
provided for in and shall be subject to the terms and
conditions of Clause 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 supply the necessary
modification kit free of charge or under the pro rata formula
set out in Clause 12.2.3. If such a kit is so offered to the
Buyer, then, to the extent of such Failure and any Failures
that could ensue therefrom, the validity of the Seller's
commitment under this Clause 12.2 shall be subject to the
Buyer's incorporating such modification in the relevant
Aircraft, as promulgated by the Seller and in accordance with
the Seller's instructions, within a reasonable time, and
preferably in line with the Buyer's maintenance schedule.
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 herein is to furnish only those
corrections to the Items or provide replacement therefor as
provided for in Clause 12.2.3.
The Buyer's sole remedy and relief for the non-performance of
any obligation or liability of the Seller arising under or by
virtue of this Service Life Policy shall be in monetary
damages, limited to the amount the Buyer reasonably expends in
procuring a correction or replacement for any Item which is the
subject of a Failure covered by this Service Life Policy and to
which such non-performance is related.
The Buyer hereby waives, releases and renounces all claims to
any further damages, direct, incidental or consequential,
including loss of profits and all other rights, claims and
remedies, arising under or by virtue of this Service Life
Policy.
12.2.5 TRANSFERABILITY
The Buyer's rights under this Clause 12.2 shall not be assigned,
sold, leased, transferred or otherwise alienated by operation of
law or otherwise, without the Seller's prior consent thereto,
which shall not be unreasonably withheld and given in writing.
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 SUPPLIER PRODUCT SUPPORT AGREEMENTS
Prior to the Delivery of the first Aircraft, the Seller shall
provide the Buyer with such warranties and service life policies
that the Seller has obtained pursuant to the Supplier Product
Support Agreement.
12.3.1 DEFINITIONS
12.3.1.1 "SUPPLIER" means any supplier of Supplier Parts.
12.3.1.2 "SUPPLIER PART" means any component, equipment, accessory or
part installed in an Aircraft at the time of Delivery thereof as
to which there exists a Supplier Product Support Agreement.
However, the Propulsion Systems and Buyer Furnished Equipment
and other equipment selected by the Buyer to be supplied by
Suppliers with whom the Seller has no existing enforceable
warranty agreements are not Supplier Parts.
12.3.1.3 "SUPPLIER PRODUCT SUPPORT AGREEMENT" means an agreement between
the Seller and a Supplier containing enforceable and
transferable warranties and in the case of landing gear
suppliers, service life policies for selected structural landing
gear elements.
12.3.2 SUPPLIER'S DEFAULT
12.3.2.1 In the event of any Supplier, under any standard warranty
obtained by the Seller pursuant to Clause 12.3.1, defaulting in
the performance of any material obligation with respect thereto
and the Buyer submitting in reasonable time to the Seller
reasonable proof that such default has occurred, then Clause
12.1 shall apply to the extent the same would have been
applicable had such Supplier Part been a Warranted Part, except
that the Supplier's warranty period as indicated in the Supplier
Product Support Agreement shall apply.
12.3.2.2 In the event of any Supplier, under any Supplier Service Life
Policy obtained by the Seller pursuant to Clause 12.3.1,
defaulting in the performance of any material obligation with
respect thereto and the Buyer submitting in reasonable time to
the Seller reasonable proof that such default has occurred, then
Clause 12.2 shall apply to the extent the same would have been
applicable had such Supplier Item been listed in Exhibit F,
Seller Service Life Policy, except that the Supplier's Service
Life Policy period as indicated in the Supplier Product Support
Agreement shall apply.
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 Supplier with respect to and arising by
reason of such default and 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, 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 ("INTERFACE PROBLEM"), the
Seller shall, if so requested by the Buyer, and without
additional charge to the Buyer, promptly conduct or have
conducted an investigation and analysis of such problem to
determine, if possible, the cause or causes of the problem and
to recommend such corrective action as may be feasible. The
Buyer 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 so requested by the Buyer and pursuant to the
terms and conditions of Clause 12.1, correct the design of such
Warranted Part to the extent of the Seller's obligation as
defined in Clause 12.1.
12.4.3 SUPPLIER'S RESPONSIBILITY
If the Seller determines that the Interface Problem is
primarily attributable to the design of any Supplier Part, the
Seller shall, if so requested by the Buyer, reasonably assist
the Buyer in processing any warranty claim the Buyer may have
against the Supplier.
12.4.4 JOINT RESPONSIBILITY
If the Seller determines that the Interface Problem is
attributable partially to the design of a Warranted Part and
partially to the design of any Supplier Part, the Seller shall,
if so requested by the Buyer, seek a solution to the Interface
Problem through cooperative efforts of the Seller and any
Supplier involved.
The Seller shall promptly advise the Buyer of such corrective
action as may be proposed by the Seller and any such Supplier.
Such proposal shall be consistent with any then existing
obligations of the Seller hereunder and of any such Supplier to
the Buyer. Such corrective action when accepted by the Buyer
shall constitute full satisfaction of any claim the Buyer may
have against either the Seller or any such Supplier with
respect to such Interface Problem.
12.4.5 GENERAL
12.4.5.1 All requests under this Clause 12.4 shall be directed to both
the Seller and the Supplier.
12.4.5.2 Except as specifically set forth in this Clause 12.4, this
Clause shall not be deemed to impose on the Seller any
obligations not expressly set forth elsewhere in this Clause
12.
12.4.5.3 All reports, recommendations, data and other documents
furnished by the Seller to the Buyer pursuant to this Clause
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.
12.5 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 12 ARE EXCLUSIVE
AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES
AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF
THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT
IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART
DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER
CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM
THE SELLER'S NEGLIGENCE, ACTUAL OR IMPUTED; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART THEREOF.
SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER
ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER
DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO
ANY NON-CONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART DELIVERED UNDER THIS AGREEMENT.
12.6 DUPLICATE REMEDIES
The Seller shall not be obliged to provide any remedy which
duplicates any other remedy already provided to the Buyer in
respect of the same defect under any part of this Clause 12 as
such Clause may be amended, complemented or supplemented by
other contractual agreements or by other Clauses of this
Agreement.
12.7 NEGOTIATED AGREEMENT
The Buyer specifically recognises that:
(i) the Specification has been agreed upon after careful
consideration by the Buyer using its judgment as a
professional operator of aircraft used in public
transportation.
(ii) this Agreement, and in particular this Clause 12, has
been the subject of discussion and negotiation and is
fully understood by the Buyer;
(iii) the price of the Aircraft and the other mutual
agreements of the Buyer set forth in this Agreement
were arrived at in consideration of, inter alia, the
provisions of this Clause 12, specifically including
the waiver, release and renunciation by the Buyer set
forth in Clause 12.5.
13 PATENT AND COPYRIGHT INDEMNITY
13.1 INDEMNITY
13.1.1 Subject to the provisions of Clause 13.2.3, the Seller shall
indemnify the Buyer and undertakes to keep the Buyer fully
indemnified from and against any damages, costs or expenses
including legal costs (including any costs incurred by the
Buyer in obtaining the release of the Aircraft pursuant to
Clause 13.2.1 (iii) but excluding damages, costs, expenses,
loss of profits and other liabilities in respect of or
resulting from loss of use of the Aircraft) resulting from any
infringement or claim of infringement by the Aircraft (or any
part or software installed therein at Delivery) of:
(i) any British, French, Dutch, German, Spanish or U.S.
patent;
and :
(ii) any patent issued under the laws of any other country
in which the Buyer may lawfully operate the Aircraft,
provided that :
(1) at the time of such infringement or claim,
such country and the flag country of the
Aircraft are each a party to the Chicago
Convention on International Civil Aviation
of December 7, 1944 and are each fully
entitled to all benefits of Article 27
thereof,
or in the alternative,
(2) at the time of such infringement or claim,
such country and the flag country of the
Aircraft are each a party to the
International Convention for the Protection
of Industrial Property of March 20, 1883
("Paris Convention");
and:
(iii) in respect of computer software installed on the
Aircraft, any copyright, provided that the Seller's
obligation to indemnify shall be limited to
infringements in countries which,
at the time of infringement, are members of The Berne
Union and recognise computer software as a "work" under
the Berne Convention.
13.1.2 Clause 13.1.1 shall not apply to
(i) Buyer Furnished Equipment or Propulsion Systems; or
(ii) parts not supplied pursuant to a Supplier Product
Support Agreement ; or
(iii) software not installed on the Aircraft at the date of
Delivery.
13.1.3 Furthermore, in the event that the Buyer is prevented from
using the Aircraft (whether by a valid judgement of a court of
competent jurisdiction or by a settlement arrived at between
claimant, Seller and Buyer or otherwise), the Seller shall at
its expense either :
(i) procure for the Buyer the right to use the same free of
charge to the Buyer; or
(ii) replace the infringing part of the Aircraft promptly
with a non-infringing substitute complying in all other
respects with the requirements of this Agreement,
including interchangeability with the original part.
13.2 ADMINISTRATION OF PATENT AND COPYRIGHT INDEMNITY CLAIMS
13.2.1 If the Buyer receives a written claim or a suit is threatened
or commenced against the Buyer for infringement of a patent or
copyright referred to in Clause 13.1, the Buyer shall :
(i) promptly notify the Seller giving particulars thereof;
(ii) in so far as is permitted by law and by the regulatory
authorities furnish to the Seller all data, papers and
records within the Buyer's control or possession
relating to such patent or claim;
(iii) refrain from admitting any liability or making any
payment or assuming any expenses, damages, costs or
royalties or otherwise acting in a manner prejudicial
to the defence or denial of such suit or claim provided
always that nothing in this sub-Clause (iii) shall
prevent the Buyer from paying such sums as may be
required in order to obtain the release of the
Aircraft, provided such payment is accompanied by a
denial of liability and is made without prejudice;
(iv) fully co-operate with, and render all such reasonable
assistance to the Seller as may be reasonably requested
by the Seller and as may be pertinent to the defence or
denial of the suit or claim ;
(v) reasonably act in such a way as to mitigate damages
and/or to reduce the amount of royalties which may be
payable as well as to minimise costs and expenses as
far as may be reasonably expected from the Buyer.
13.2.2 The Seller shall be entitled either in its own name or on
behalf of the Buyer at the Seller's sole cost and expense to
conduct negotiations with the party or parties alleging
infringement and may assume and conduct the defence or
settlement of any suit or claim in the manner which, in the
Seller's opinion, it deems proper. The Buyer may engage its
own legal advisers at its own cost to monitor such proceedings
on the Buyer's behalf, provided however that such advisers
shall not intervene or interfere in any way with the Seller's
conduct of the defence or settlement.
13.2.3 The Seller's liability hereunder shall be conditional upon the
strict and timely compliance by the Buyer with the terms of
this Clause and is in lieu of any other liability to the Buyer
express or implied which the Seller might incur at law as a
result of any infringement or claim of infringement of any
patent or copyright.
14 TECHNICAL DATA AND DOCUMENTATION
14.1 GENERAL
This Clause covers the terms and conditions for the supply of
technical data and documentation (hereinafter "TECHNICAL DATA
AND DOCUMENTATION") to support the Aircraft operation.
The Technical Data and Documentation shall be supplied in the
English language using the aeronautical terminology in common
use.
14.2 SCOPE
Range, form, type, format, Air Transport Association
("ATA")/Non ATA compliance, quantity and delivery schedule of
the Technical Data and Documentation to be provided under this
Agreement are covered in Exhibit G.
14.3 AIRCRAFT IDENTIFICATION FOR TECHNICAL DATA AND DOCUMENTATION
14.3.1 For the customized Technical Data and Documentation the Buyer
agrees to the allocation of fleet serial numbers ("FLEET
SERIAL NUMBERS") in the form of block of numbers selected in
the range from 001 to 999.
14.3.2 The sequence shall not be interrupted except if two (2)
different Propulsion Systems or two (2) different Aircraft
models are selected.
14.3.3 The Buyer shall indicate to the Seller the Fleet Serial Number
allocated to the Aircraft Manufacturer's Serial Number at the
latest one year prior to the delivery of the first Aircraft.
The allocation of Fleet Serial Numbers to Manufacturer's
Serial Numbers shall not constitute any property, insurable or
other interest of the Buyer whatsoever in any Aircraft prior
to the Delivery of such Aircraft as provided for in this
Agreement.
The affected customized Technical Data and Documentation are :
- Aircraft Maintenance Manual (and associated products),
- Illustrated Parts Catalog,
- Trouble Shooting Manual,
- Aircraft Wiring Manual,
- Aircraft Schematics Manual,
- Aircraft Wiring Lists.
14.4 SUPPLIER EQUIPMENT
14.4.1 Information relating to Supplier equipment which is installed
on the Aircraft by the Seller shall be introduced into the
customized Technical Data and Documentation to the extent
necessary for the comprehension of the systems concerned, at
no additional charge to the Buyer for the Technical Data and
Documentation basic issue.
14.4.2 The Buyer shall supply the data related to Buyer Furnished
Equipment to the Seller at least six (6) months before the
scheduled delivery of the customized Technical Data and
Documentation. The Buyer Furnished Equipment data supplied by
the Buyer to the Seller shall be in English language.
14.4.3 The Seller shall introduce Buyer Furnished Equipment data, for
equipment which is installed on the Aircraft by the Seller,
into the customized Technical Data and Documentation at no
additional charge to the Buyer for the Technical Data and
Documentation basic issue. The transportation costs related to
Buyer Furnished Equipment data shipment to the Seller shall be
the Buyer's responsibility.
14.4.4 In the event that the Buyer has not supplied the data in due
time as per Clause 14.3.2 to allow the Seller to incorporate
it in the basic issue of the Technical Data and Documentation,
such data shall be incorporated as practicable during a
revision of the Technical Data and Documentation.
14.5 DELIVERY
14.5.1 The Technical Data and Documentation and corresponding
revisions to be supplied by the Seller shall be sent to one
address only as advised by the Buyer.
14.5.2 Packing and shipment of the Technical Data and Documentation
and their revisions shall be carried out in consideration of
the quickest transportation methods. The shipment shall be
Free Carrier (FCA) TOULOUSE, FRANCE and/or Free Carrier (FCA)
HAMBURG, FEDERAL REPUBLIC OF GERMANY, as the term Free Carrier
(FCA) is defined by publication n(Degree) 560 of the
International Chamber of Commerce, published in January 2000.
14.5.3 The above is not applicable to Technical Data and
Documentation delivered on-line.
14.5.4 The delivery schedule of the Technical Data and Documentation
shall be phased as mutually agreed to correspond with Aircraft
deliveries. The Buyer agrees to provide [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
notice when requesting a change to the delivery schedule.
14.5.5 It shall be the responsibility of the Buyer to coordinate and
satisfy local Aviation Authorities' needs for Seller's
Technical Data and Documentation. Reasonable quantities of
such Technical Data and Documentation shall be supplied by the
Seller at no charge to the Buyer Free Carrier (FCA) TOULOUSE,
FRANCE and/or Free Carrier (FCA) HAMBURG, FEDERAL REPUBLIC OF
GERMANY.
14.6 REVISION SERVICE
Unless otherwise specifically stated, revision service shall
be provided on a free of charge basis for a period of
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] after delivery of the last firmly
ordered Aircraft covered under this Agreement.
14.7 SERVICE BULLETINS (SB) INCORPORATION
During the period of revision service and upon the Buyer's
request for incorporation, which shall be made within four
years after issuance of a Service Bulletin, Seller's Service
Bulletin information shall be incorporated into the Technical
Data and Documentation for the Buyer's Aircraft after formal
notification by the Buyer of its intention to accomplish a
Service Bulletin. The split effectivity for the corresponding
Service Bulletin shall remain in the Technical Data and
Documentation until notification from the Buyer that
embodiment has been completed on all the Buyer's Aircraft. The
above is applicable for Technical Data and Documentation
relating to maintenance. For the operational Data and
Documentation only the pre or post Service Bulletin status
will be shown.
14.8 PERFORMANCE ENGINEER'S PROGRAMS
In addition to the standard operational manuals, the Seller
shall provide to the Buyer Performance Engineer's Programs
(PEP) under licence conditions as defined in Appendix A to
this Clause.
14.9 CD-ROM - CAATS / ADRES
-
Certain Technical Data and Documentation are provided on
CD-ROM under licence conditions as defined in Appendix B to
this Clause.
The affected Technical Data and Documentation are the
following :
- Trouble Shooting Manual,
- Aircraft Maintenance Manual,
- Illustrated Parts Catalog.
This list may be extended from time to time and the related
licence shall reflect such extension.
14.10 AIRBUS ON-LINE SERVICES
14.10.1 Certain Technical Data and Documentation are provided on-line
under licence conditions as defined in Appendix C to this
Clause, at no cost as long as revision service is provided in
accordance with Clause 14.6.
14.10.2 Access to the Technical Data and Documentation available
on-line as defined in Exhibit "G" shall be granted free of
charge for a maximum of [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] of the
Buyer's users (including one Buyer Administrator) for the
Technical Data and Documentation related to the Aircraft which
shall be operated by the Buyer.
14.10.3 For any Technical Data and Documentation which is available
on-line, the Seller reserves the right, subject to prior
notification to the Buyer, to suppress other formats for the
concerned Technical Data and Documentation.
14.11 FUTURE DEVELOPMENTS
The Seller shall continuously monitor technological
developments and apply them to data and document production
and methods of transmission where beneficial and economical
for both parties. The Buyer accepts to consider any new
development proposed by the Seller for possible
implementation, but may reasonably select to continue to be
supported in the present version.
14.12 TECHNICAL DATA AND DOCUMENTATION FAMILIARIZATION
Upon request by the Buyer, the Seller is ready to provide a
one (1) week Technical Data and Documentation familiarization
training at the Seller's or at the Buyer's facilities. If such
familiarization is conducted at the Buyer's facilities, the
Buyer shall reimburse the Seller for all air travel (business
class) and living expenses of the Seller's personnel
conducting such familiarization.
14.13 CUSTOMER ORIGINATED CHANGES (COC)
14.13.1 At Buyer's request, Buyer originated data may be introduced as
COC into the following customized Technical Data and
Documentation :
- Aircraft Maintenance Manual (and associated products),
- Illustrated Parts Catalog,
- Trouble Shooting Manual,
- Aircraft Wiring Manual,
- Aircraft Schematics Manual,
- Aircraft Wiring Lists,
- Flight Crew Operating Manual,
- Quick Reference Handbook.
14.13.2 COC data shall be established by the Buyer according to the
Customer Guide for Customer Originated Changes, as issued by
the Seller. The Buyer shall ensure that any such data is in
compliance with the requirements of its local Aviation
Authorities.
COC data shall be incorporated by the Seller into all affected
customized Technical Data and Documentation unless the Buyer
specifies in writing the documents of its choice into which
the COC data shall be incorporated. The customized Technical
Data and Documentation into which the COC data are
incorporated shall only show the Aircraft configuration
reflecting the COC data and not the configuration before such
COC data's incorporation.
14.13.3 The Buyer hereby acknowledges and accepts that the
incorporation of any COC into the Technical Data and
Documentation issued by the Seller shall be entirely at the
Buyer's risk.
Further, the Buyer acknowledges full liability for the
effects, including all related costs, which any COC may have
on the implementation of any subsequent Service Bulletins
and/or modifications.
14.13.3.1 The Seller shall not be required to check any COC data
submitted for incorporation. Accordingly, the Seller shall be
under no liability whatsoever in respect of either the
contents
of any COC, including any omissions or inaccuracies therein,
or the effect, which the incorporation of such COC may have on
the Technical Data and Documentation issued by the Seller.
14.13.3.2 In the event of the Seller being required under any court
order or settlement to indemnify any third party for injury,
loss or damage incurred directly or indirectly as a result of
incorporation of any COC into the Technical Data and
Documentation issued by the Seller, and except if the COC data
is incorporated incorrectly by the Seller through no fault of
the Buyer, the Buyer agrees to reimburse the Seller for all
payments or settlements made in respect of such injury, loss
or damage including any expenses incurred by the Seller in
defending such claims.
14.13.4 The incorporation of any COC as aforesaid shall be performed
under the conditions specified in the Seller's then current
Customer Services Catalog.
14.14 WARRANTIES
14.14.1 The Seller warrants that the Technical Data and Documentation
are prepared in accordance with the state of art at the date
of their conception. Should any Technical Data and
Documentation prepared by the Seller contain non-conformity or
defect, the sole and exclusive liability of the Seller shall
be to take all reasonable and proper steps to, at its option,
correct or replace such Technical Data and Documentation.
Notwithstanding the above, no warranties of any kind are given
for the Customer Originated Changes, as set forth in Clause
14.13.
14.14.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 14 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY
WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS AND LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS
AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT IN ANY TECHNICAL DATA AND
DOCUMENTATION DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT
NOT LIMITED TO :
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY,
WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT
ARISING FROM THE SELLER'S NEGLIGENCE, ACTUAL OR
IMPUTED; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART THEREOF.
SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER
ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER
DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO
ANY NON-CONFORMITY OR DEFECT IN ANY TECHNICAL DATA AND
DOCUMENTATION DELIVERED UNDER THIS AGREEMENT.
14.15 PROPRIETARY RIGHTS
14.15.1 All proprietary rights, including but not limited to patent,
design and copyrights, relating to Technical Data and
Documentation shall remain with the Seller.
These proprietary rights shall also apply to any translation
into a language or languages or media that may have been
performed or caused to be performed by the Buyer.
14.15.2 Whenever this Agreement provides for manufacturing by the
Buyer, the consent given by the Seller shall not be construed
as express or implicit approval howsoever neither of the Buyer
nor of the manufactured products. The supply of the Technical
Data and Documentation
shall not be construed as any further right for the Buyer to
design or manufacture any Aircraft or part thereof or spare
part.
14.16 CONFIDENTIALITY
14.16.1 The Technical Data and Documentation and their content are
designated as confidential. All such Technical Data and
Documentation are supplied to the Buyer for the sole use of
the Buyer who undertakes not to disclose the contents thereof
to any third party without the prior written consent of the
Seller, such consent not to be unreasonably withheld, save as
permitted therein or otherwise pursuant to any government or
legal requirement imposed upon the Buyer.
14.16.2 In the case of the Seller having authorized the disclosure to
third parties either under this Agreement or by an express
prior written authorization, the Buyer shall undertake that
such third party agree to be bound by the same conditions and
restrictions as the Buyer with respect to the disclosed
Technical Data and Documentation.
APPENDIX A TO CLAUSE 14
LICENCE FOR USE
OF THE
PERFORMANCE ENGINEER'S PROGRAMS (PEP)
LICENCE FOR USE OF THE PERFORMANCE ENGINEER'S PROGRAMS (PEP)
1 GRANT
1.1 The Seller grants the Buyer the right to use the PEP during the
term of this licence ("PEP LICENCE") on a single computer.
1.2 The above grant shall be free of charge for as long as the
revisions of the PEP are free of charge in accordance with
Clause 14. At the end of such period, the yearly subscription
fee (revision service) for the PEP shall be charged to the
Buyer at the price stated in the then current Seller's Customer
Services Catalog.
2 COPIES
2.1 Use of the PEP shall be limited to one (1) copy other than the
copies contained in the single computer and copies produced for
checkpoint and restart purposes or additional copies made with
the consent of the Seller for a specific need.
2.2 The Buyer agrees to reproduce the copyright and other notices
as they appear on or within the original media on any copies
that the Buyer makes of the PEP.
3 TERM
3.1 The rights under the PEP Licence shall be granted to the Buyer
as long as the Buyer operates a Seller's Aircraft model to
which the PEP is applicable. When the Buyer stops operating
said Aircraft model, the Buyer shall return the PEP and any
copies thereof to the Seller, accompanied by a notice
certifying that the Buyer has returned all existing copies.
3.2 For clarification purposes it is hereby expressly stated that
PEP shall be offered for a limited time period, not exceeding
the term of this PEP Licence. In the event that the Seller
should offer a replacement product, the conditions for using
such product shall be subject to a separate agreement, which
shall not be less favourable for the Buyer than those
applicable to the PEP.
4 MERGING
The PEP may be used and adapted in machine readable form for
the purpose of merging it into other program material of the
Buyer but on termination of this PEP Licence, the PEP shall be
removed from the other program material with which it has been
merged.
The Buyer agrees to reproduce the copyright and other notices
as they appear on or within the original media in any program
that the PEP is merged into.
5 PERSONAL LICENCE
The above described PEP Licence is personal to the Buyer,
non-transferable and non-exclusive.
6 INSTALLATION
It is the Buyer's responsibility to install the PEP and to
perform any mergings and checks.
7 TRAINING
In addition to the performance programs user guide supplied
with the PEP, training and other assistance may be provided
upon the Buyer's request at no charge within the limits defined
in Paragraph 1.4 of Appendix A to Clause 16.
8 PROPRIETARY RIGHTS
The PEP and the copyright and other proprietary rights of
whatever nature in the PEP are and shall remain with the
Seller. The PEP and its contents are designated as
confidential.
9 COPYRIGHT INDEMNITY
The Seller shall defend and indemnify the Buyer against any
claim that the normal use of PEP infringes the intellectual
property rights of any third party, provided that the Buyer:
9.1 immediately notifies the Seller of any such claim;
9.2 makes no admission or settlement of any claim;
9.3 allows the Seller to have sole control of all negotiations for
its settlement;
9.4 gives the Seller all reasonable assistance in connection
therewith.
10 CONFIDENTIALITY
The Buyer undertakes not to disclose the PEP or parts thereof
and its contents to any third party without the prior written
consent of the Seller. In so far as it is necessary to disclose
aspects of the PEP to any third party, such disclosure is
permitted only for the purpose for which the PEP is supplied
and only to the third party who needs to know the same.
11 CONDITIONS OF USE
The Buyer shall ensure that the PEP is correctly used in
appropriate machines as described in the PEP delivery
documentation and that staff are properly trained to use the
same in accordance with the user guide.
12 WARRANTY
12.1 The Seller warrants that the PEP is prepared in accordance with
the state of art at the date of conception. Should the PEP be
found to contain any non-conformity or defect, the Buyer shall
notify the Seller promptly thereof and the sole and exclusive
liability of the Seller under this PEP Licence shall be to
correct the same at its own expense.
12.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS PEP LICENCE ARE WAIVES,
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF
THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT
IN THE PEP DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT
LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY,
WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT
ARISING FROM THE SELLER'S NEGLIGENCE, ACTUAL OR
IMPUTED; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART THEREOF.
SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER
ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER
DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO
ANY NON-CONFORMITY OR DEFECT IN THE PEP DELIVERED UNDER THIS
AGREEMENT.
APPENDIX B TO CLAUSE 14
LICENCE FOR USE OF CD-ROM -- CAATS / ADRES
LICENCE FOR USE OF CD-ROM -- CAATS / ADRES **
1 GRANT
1.1 The Seller grants the Buyer the right to use the Aircraft
Documentation Retrieval System (ADRES) and/or the Computer
Assisted Aircraft Trouble Shooting (CAATS) on CD-ROM for the
term of this licence ("CAATS/ADRES LICENCE").
1.2 The above grant shall be free of charge for as long as the
revisions of CAATS and ADRES are free of charge in accordance
with Clause 14. At the end of such period(s) yearly
subscription fees (revision service) shall be charged to the
Buyer at the price stated in the then current Seller's Customer
Services Catalog.
2 COPIES
Use of ADRES and/or CAATS shall be limited to the number of
copies defined between the parties.
3 TERM
3.1 The rights under the CAATS/ADRES Licence shall be granted from
the date of first delivery of ADRES and/or CAATS as long as the
Buyer operates the Aircraft or until a replacement product
shall be provided by the Seller, whichever occurs first. Within
thirty (30) days of termination of the CAATS/ADRES Licence, the
Buyer shall return ADRES and/or CAATS and all copies thereof to
the Seller.
3.2 For clarification purposes it is hereby expressly stated that
ADRES and/or CAATS shall be offered for a limited time period,
not exceeding the term of this CAATS/ADRES Licence. In the
event that the Seller should offer a replacement product, the
conditions for using such product shall be subject to a
separate agreement, [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
4 REVISION SERVICE
The Seller shall provide revision service for ADRES and/or
CAATS during the term. The revision service shall be based on
the revision service which the Seller provides for the
applicable documentation in paper or film format. Temporary
revisions shall be provided in digital format under the form of
3.5-inch floppy disk. The retrieval software for such temporary
revisions shall be embodied on the CAATS and ADRES CD-ROM.
5 PERSONAL LICENCE
The CAATS/ADRES Licence is personal to the Buyer,
non-transferable and non-exclusive. The Buyer shall not permit
any third party to use ADRES and/or CAATS without prior written
consent from the Seller.
6 INSTALLATION
The Seller shall provide the hardware recommendation on which
CAATS and ADRES have been tested by the Seller. The Buyer shall
be responsible for procuring such hardware or equivalent for
installing ADRES and/or CAATS.
7 SUPPORT
In addition to the user guide supplied with ADRES and/or CAATS,
familiarization and other assistance may be provided upon the
Buyer's request at conditions to be mutually agreed.
8 PROPRIETARY RIGHTS
ADRES and/or CAATS are proprietary to the Seller and the
copyright and all other proprietary rights in ADRES and/or
CAATS are and shall remain the property of the Seller.
9 COPYRIGHT INDEMNITY
The Seller shall defend and indemnify the Buyer against any
claim that the normal use of ADRES and/or CAATS infringes the
intellectual property rights of any third party, provided that
the Buyer:
9.1 immediately notifies the Seller of any such claim;
9.2 makes no admission or settlement of any claim;
9.3 allows the Seller to have sole control of all negotiations for
its settlement;
9.4 gives the Seller all reasonable assistance in connection
therewith. The Seller shall reimburse the Buyer reasonable
expenses incurred, if any, in connection with such assistance.
10 CONFIDENTIALITY
ADRES and/or CAATS and their contents are designated as
confidential. The Buyer undertakes not to disclose ADRES and/or
CAATS or parts thereof to any third party without the prior
written consent of the Seller. In so far as it is necessary to
disclose aspects of ADRES and/or CAATS to the employees, such
disclosure is permitted solely for the purpose for which ADRES
and/or CAATS are supplied and only to those employees who need
to know the same.
11 WARRANTY
11.1 The Seller warrants that the ADRES and CAATS are prepared in
accordance with the state of art at the date of conception.
Should the ADRES and/or CAATS be found to contain any
non-conformity or defect, the Buyer shall notify the Seller
promptly thereof and the sole and exclusive liability of the
Seller under this CAATS/ADRES Licence shall be to correct the
same in the next revision if practicable, at the Seller's
expense.
11.2 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS CAATS/ADRES LICENCE ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF
THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT
IN ADRES AND/OR CAATS DELIVERED UNDER THIS AGREEMENT, INCLUDING
BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY,
WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT
ARISING FROM THE SELLER'S NEGLIGENCE, ACTUAL OR IMPUTED;
AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART THEREOF.
SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER
ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER
DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO
ANY NON-CONFORMITY OR DEFECT IN ADRES AND/OR CAATS DELIVERED
UNDER THIS AGREEMENT.
APPENDIX C TO CLAUSE 14
LICENCE FOR USE OF AIRBUS ON-LINE SERVICES
(AOLS)
AOLS GENERAL CONDITIONS OF LICENSING
These Airbus On-Line Services (AOLS) General Conditions of Licensing ("the
Conditions") shall apply to services provided by the Seller in relation with
AOLS.
1. DEFINITIONS
In these Conditions:
The " Access Procedure Kit" means the information necessary for accessing the Database.
The "Administrator" means the person appointed by the User Entity to be responsible for qualifying,
suspending or canceling the qualification of an Authorized User, gathering
identification information relative to such Authorized User, applying to the
Certification-Service-Provider for the appropriate Certificate, providing the necessary
access equipment as specified by the Seller, registering the Authorized User and the
Authorized User related Certificate with the Seller and managing the Authorized Users.
The "Authorized User" means a natural person who has been authorized by the Administrator of the User Entity
to access the Database under these Conditions.
The "Certificate" means an electronic record (file) that binds a Public Key to the identity of the owner
of a Public -- Private Key pair and is signed by the Certification-Service-Provider.
The "Certification-Service- means an entity or a legal or natural person retained by the Seller, who issues
Provider" Certificates and/or provides other services related to Electronic Signature.
The "Data" means usual representation of a piece of information - whether collected or produced on
any medium - so as to facilitate its processing on the Database.
The "Database" means Data of the Seller organized in such a manner as to be used by computer programs
forming distinct applications to facilitate electronic or telecommunication Data
exchange and computer programs comprising the necessary electronic elements for the
operation of the Database such as a Database index, viewing systems, and database
services known as AOLS.
The "Electronic Signature" means data in electronic form which are attached to or logically associated with other
electronic data and which serve as a method of authentication.
The "Extracting" means temporary or permanent transfer of Data from a Database by any means or media.
The "Multibase" means a set of databases, which compose the Database.
The "On-Line Help" means on-line operating assistance and guidance information.
The "Public key" means the public cryptographic key used for the purpose of verifying an Electronic
Signature.
The "Public Key Infrastructure" means the system organizing the generation and distribution of keys and Certificates.
The "Private Key" means the private cryptographic key used for the purpose of creating an Electronic
Signature.
The "Reader" means equipment to be acquired by the User Entity to be used with the Smartcard for
authentication of the User Entity's Authorized Users.
The "Smartcard" means a card supplied by the Seller, memorizing the User Entity's Authorized User's
identity, personal password and Private Key for use with the Reader for authentication
and security purposes.
The "Substantial Extraction" means permanent or temporary transfer of a substantial part of the Data from the
Database by any means or media.
The "Use" means viewing, Extracting, reviewing, printing, reproducing, on any media, of Data from
the Database, under the conditions set forth in these Conditions.
The "User Entity" means the Buyer.
The "User Guide" means documentation, which may be in electronic format, designed to assist the
Authorized User to use the Database.
2. SCOPE
2.1 The Seller owns an original Database built from Data realized and
collected by the Seller related to Airbus aircraft technical and
commercial documentation and information, which is available via a set of
services known as Airbus On-Line Services ("AOLS"). The different AOLS
services may be accessed via Airbus On-Line Services website.
2.2 The Conditions define the terms and conditions under which the Seller
grants the User Entity, who accepts, a personal, non-exclusive,
non-assignable and non-transferable right to use Data from the AOLS
Database for its own professional needs.
2.3 The User Entity represents to be competent to use and evaluate the AOLS
services and represents further that the Database matches its
professional needs. The User Entity also represents to have the adequate
resources to administer its Authorized Users and to implement Electronic
Signature technology.
3. LICENCED RIGHTS
The User Entity shall be granted, for Authorized Users only, a
non-exclusive, personal, non-transferable, non-assignable right to
access, use, extract, reproduce, print Data from the Database
from the site(s) designated by the Seller for its own strictly
professional needs for the duration of these Conditions.
Such right shall extend to all Authorized Users of the User Entity on the
basis of the level of service selected by the User Entity. The User
Entity shall not, under any circumstances, carry out a Substantial
Extraction of Data from the Database.
4. CONFIGURATION
The User Entity acknowledges that the Seller may not be held responsible
for any consequences attached to the Seller's modification from time to
time of its information system's configuration, including its operating
system, and of any software used in connection with the Database.
5. DATABASE CONDITIONS OF USE
5.1 The User Entity shall appoint one or several Administrators who shall be
responsible for qualifying, suspending or canceling the qualification of
Authorized Users, gathering identification information relative to such
Authorized Users, applying to the Certification-Service-Provider for the
appropriate Certificate, providing the necessary access equipment as
specified by the Seller, registering the Authorized Users and the
Authorized User related Certificates with the Seller and managing the
Authorized Users.
An Authorized User may access AOLS services by logging onto the Airbus
On-Line Services website as specified by the Seller. Log on procedures
set forth by the Seller and in the Access Procedure Kit made available to
the User Entity require a Certificate issued by a Certification-Service-
Provider, used with the Authorized User's Smartcard and a Reader for the
Administrator.
5.2 The User Entity is only granted the right to use the AOLS Database
services under the terms and conditions set forth herein. The Database
shall only be used for the User Entity's own professional needs. The User
Entity shall be solely responsible for the choice of the services it
wishes to access.
The User Entity is solely responsible for defining its own search
strategy on the Database, for evaluating the appropriateness of the
search results and for defining how to use the Data obtained from the
Database.
The User Entity shall take all reasonable steps necessary to prevent
unauthorized access to the Database, the Data and to the documentation
including the User Guide. Positive authentication of an Authorized User
in the conditions set forth herein and as specified by the Seller shall
bind the User Entity for each and every transaction performed by such
Authorized User and the User Entity expressly waives any right to
repudiate any transaction resulting from such Use.
The User Entity shall comply with the security procedure as defined by
the Seller.
6. DATABASE AVAILABILITY
The Database shall be available to the User Entity on a 24 hours a day/7
days a week basis. Notwithstanding the above, the Seller reserves the
right to suspend temporarily the access to AOLS where such suspension is
necessary for fixing security problems, performing maintenance services,
updating and/or upgrading the Database. the Seller will inform the User
Entity in due time before any scheduled suspension, except in case of
security problems. In the case of such suspensions, the Seller shall use
reasonable endeavours to limit the service down-time.
7. EVIDENTIARY AGREEMENT
The electronic logs produced by the Seller's information system shall be
held as valid evidence of the communications, transactions and payments
made between the Seller and the User Entity via reiterated,
electronically communicated consent. the Seller will store such logs in a
reasonably secure manner on its information system or any third party's
system or medium.
The Seller shall also ensure that such data contained on such logs are
not altered or modified after their initial recording.
8. ELECTRONIC SIGNATURE
The use by the User Entity of the Certificates together with the Readers
remains within the User Entity's sole control and shall attest:
- authentication of the User Entity and the Authorized User;
- authentication of the Data communicated by and/or to the User Entity
and the Authorized User;
- Electronic Signature of the User Entity and the Authorized User.
9. CERTIFICATION
The Seller will specify a Certification-Service-Provider, who will
provide for certification of the Authorized Users.
Such Certification-Service-Provider shall, upon the User Entity's
application, issue one or several Certificates containing the
identification of the Certification-Service-Provider and the country in
which such Certificate was established, the identification of the User
Entity and the Authorized User, the User Entity's and the Authorized
User's Public Key corresponding to the User Entity's and the Authorized
User's Private Key, the identity code of the Certificate, the Electronic
Signature of the Certification-Service-Provider issuing the Certificate
and possible limitations on the scope of use of the Certificate.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The User Entity is hereby informed that the Database is owned by the
Seller pursuant to French intellectual property laws. The User Entity
shall not infringe directly or indirectly the Seller's ownership rights
on the Database. The User Entity shall not deactivate the
Database-integrated security system.
10.2 The User Entity is not authorized to make representations in any form
whatsoever, to market or to promote the Database or any Data from the
Database, whether gratuitously or for a consideration. The User Entity is
not authorized to adapt, modify, alter, arrange or translate the Database
for any reason. The User Entity is not authorized to create a new
Database competing with the Seller's Database. The User Entity is not
authorized to alter in any way the Database's architecture.
10.3 The User Entity shall inform members of its personnel, agents and
representatives of the terms of the foregoing disposition as well as of
the terms limiting the Database Use provided under these Conditions. The
User Entity shall take all necessary steps to prevent unauthorized access
to the Database. The User Entity shall maintain all copyright mentions
appearing on the Database, Data and documentation including User Guide,
on any media.
10.4 The foregoing does not operate any assignment of intellectual property
rights to the User Entity but, rather, grants the User Entity rights to
use the Database as provided under these Conditions.
10.5 User documentation, including User Guide and On-Line Help, is and shall
remain the Seller's property. The User Entity is granted a right to use
such documentation solely in connection with its Use of the Database.
11. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
The Seller shall defend and indemnify the User Entity against any claim
that the normal Use of the Database infringes the intellectual property
rights of any third party, provided that the User Entity:
- immediately notifies the Seller of any such claim;
- makes no admission or settlement of any claim;
- allows the Seller to have sole control over such claim;
- gives the Seller all reasonable assistance in connection therewith.
12. PRICE AND PAYMENT
Licensing fees and payment terms are as specified by the Seller. In any
event, the licensing fees will [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
13. WARRANTY
13.1 The Seller warrants that the Database is prepared in accordance with
the state of art at the date of conception. Should the Database be
found to contain any non-conformity or defect, the User Entity shall
notify the Seller promptly thereof and the sole and exclusive liability
of the Seller under this Database License shall be to correct the same
at its own expense.
13.2 The above warranty is subject to the following conditions:
13.2.1 By reason of (i) the diversity of the information sources, (ii) the
information processing complexity, (iii) the difficulty to control
sources by cross-checking, the User Entity shall use the Data with
care.
13.2.2 The User Entity shall inform the Seller of any error or lack of Data it
may become aware of during the performance of these Conditions. Data
transmission occurs at the User Entity's own risks.
13.2.3 The User Entity shall be solely responsible for selecting and
maintaining telecommunication lines, information system equipment and
configuration, software, including browser, and software products
enabling the User Entity to access the Airbus AOLS website.
13.2.4 The User Entity is aware of the limitations of the AOLS website,
including in terms of the network's availability, speed or malfunction
and that it shall in no event hold the Seller responsible for such
shortcomings inherent to the network. Further, the User Entity shall
ensure that any software, including proprietary software, which may
interface with the relevant Database does not affect the Database
access conditions.
13.2.5 The User Entity shall comply with its obligations related to the access
and Use of the Database defined in these Conditions.
13.3 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND REMEDIES
OF THE USER ENTITY SET FORTH IN THESE CONDITIONS ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND THE USER ENTITY HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE
SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE USER ENTITY AGAINST THE
SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT
TO ANY NON-CONFORMITY OR DEFECT IN THE DATABASE MADE AVAILABLE UNDER
THESE CONDITIONS INCLUDING BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER
CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE
SELLER'S NEGLIGENCE, ACTUAL OR IMPUTED; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR
DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR
PART THEREOF.
THE SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING,
FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT
IN THE DATABASE MADE AVAILABLE UNDER THESE CONDITIONS.
14. NON DISCLOSURE
The User Entity shall not disclose the Database or parts thereof and
its contents to any third party without the prior written consent of
the Seller.
15. ADMINISTRATIVE AUTHORIZATIONS
The Seller and the User Entity shall assist one another and co-operate
in order to obtain and hold all necessary administrative authorizations
for the performance of these Conditions.
16. PERSONAL DATA PROTECTION
The Seller and the User Entity shall register with the relevant
authority or authorities any personal data files or personal data
automated processing systems as provided under applicable local laws
and shall inform each other of any information system evolution, which
could affect such registration(s).
The User Entity is hereby notified in accordance with article 27 of
French law n(degree)78-17 of January 6, 1978, that the Seller will
request personal data from the User Entity for accessing the Database.
Failure to provide such data shall prevent access to the Database.
Personal data will be used by the Seller, its members, affiliated
companies and subcontractors for the sole purpose of connecting and
accessing the Database by the User Entity and shall be kept strictly
confidential. Such personal data are protected by the above mentioned
law.
Personal data may be accessed by the User Entity and, as the case may
be, rectified in writing addressed to the Seller. The User Entity shall
notify Authorized Users of their aforementioned rights and shall
personally abide by applicable rules on personal data protection.
17. EXCUSABLE DELAYS
17.1 The Seller shall not be responsible nor be deemed to be in default on
account of delays in delivery or otherwise in the performance of these
Conditions or any part thereof due to causes reasonably beyond the
Seller 's or its subcontractors' control including but not limited to:
natural disasters, fires, floods, explosions or earthquakes, epidemics
or quarantine restrictions, serious accidents, total or constructive
total loss, any act of the government of the country of the User Entity
or the governments of the countries of the Seller or its
subcontractors, war, insurrections or riots, failure of transportation,
communications or services, strikes or labor troubles causing
cessation, slow down or interruption of services, inability after due
and timely diligence to procure materials, accessories, equipment or
parts, failure of a subcontractor or vendor to furnish materials,
accessories, equipment or parts due to causes reasonably beyond such
subcontractor's or vendor's control or failure of the User Entity to
comply with its obligations arising out of the present Conditions.
17.2 The Seller shall, as soon as practicable after becoming aware of any
delay falling within the provisions of this Clause, notify the User
Entity of such delay and of the probable extent thereof and shall,
subject to the conditions as hereinafter provided and as soon as
practicable after the removal of the cause or causes for delay, resume
performance under these Conditions.
17.3 Should an event of force majeure last for a period extending
beyond[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT], these Conditions shall be automatically
terminated, as a matter of right, unless otherwise agreed in writing,
without compensation for either the Seller or the User Entity. Fees
already paid for the current year shall be reimbursed by the Seller to
the Buyer.
18. TERMINATION
18.1 In the event of breach of an obligation set forth in these Conditions
by either the Seller or the User Entity, which is not cured within 30
days from the date of receipt of a written notice notifying the breach,
the non-breaching party shall be entitled to terminate these
Conditions.
18.2 In the event of termination for any cause, the User Entity shall no
longer have any right to use the Database. In addition, in case the
Buyer is the breaching party, the Seller shall be entitled to retain
any amount paid for the ongoing year.
19. GENERAL PROVISIONS
19.1 ASSIGNMENT
These Conditions or part thereof may not be assigned to a third party
without the prior consent of the other party except that the Seller may
assign all or part of these Conditions to any the Seller member or
affiliate company.
19.2 LAW
These Conditions will be governed by the laws of France. All disputes
arising in connection with these Conditions shall be submitted to the
competent courts in Toulouse, France.
19.3 INVALIDITY
In the event that any provision of these Conditions should for any
reason be held ineffective, the remainder of these Conditions shall
remain in full force and effect.
19.4 NOTICES
All notices and requests required or authorized hereunder shall be
given in writing either by registered mail (return receipt requested)
or by fax at the addresses set forth below. In the case of any such
notice or request being given by registered mail, the date upon which
it is received by the addressee or, in the case of a fax, the date upon
which the answerback is recorded by the sender's fax machine, shall be
deemed to be the effective date of such notice or request.
15 SELLER REPRESENTATIVES
15.1 CUSTOMER SUPPORT MANAGER
The Seller shall assign one (1) customer support manager based
at the Seller's main office to coordinate customer support
matters between the Seller's main office and the Buyer after
signature of this Agreement for as long as one (1) Aircraft is
operated by the Buyer.
15.2 CUSTOMER SERVICES REPRESENTATIVES
15.2.1 The Seller shall provide free of charge the services of Seller
customer services representatives ("SELLER'S REPRESENTATIVES")
acting in an advisory capacity as defined in Appendix A of
this Clause 15.
15.2.2 In the event of a need for non-routine technical assistance,
the Buyer shall have non-exclusive access to the Seller's
Representatives closest to the Buyer's main base after the end
of the assignment of the Seller's Representatives referred to
in Appendix A of this Clause 15. A list of the contacts for
the Seller's Representatives closest to the Buyer's main base
shall be provided to the Buyer.
15.2.3 The Seller shall cause similar services to be provided by
competent representatives of the Propulsion System
Manufacturer and by Supplier representatives when necessary
and applicable.
15.2.4 The Seller shall provide to the Buyer an annual written
accounting of the consumed man-months and any remaining
man-month balance. Such accounting shall be deemed as final
and acceptable to the Buyer unless the Seller receives written
objection from the Buyer within thirty (30) days of receipt of
such accounting.
15.2.5 If requested by the Buyer, Seller Representative services
exceeding the allocation specified in Appendix A of this
Clause 15 may be provided by the Seller subject to terms and
conditions to be mutually agreed.
15.3 BUYER'S SERVICE
15.3.1 From the date of arrival of the first of the Seller's
Representatives and for the duration of the assignment, the
Buyer shall provide free of charge a suitable lockable office,
conveniently
located with respect to the Buyer's maintenance facilities,
with complete office furniture including telephone and
facsimile connections for the sole use of the Seller's
Representatives, and with access to relevant office equipment.
15.3.2 Should the Buyer request any of the Seller's Representatives
referred to in Clause 15.2 above, to travel on business to a
city other than his usual place of assignment, the Buyer shall
be responsible for reasonable related transportation costs and
expenses.
15.3.3 The Buyer shall assist the Seller to obtain from the civil
authorities of the Buyer's country those documents which are
necessary to permit the Seller's Representatives to live and
work in the Buyer's country.
15.3.4 The Buyer shall reimburse to the Seller charges, taxes,
duties, imposts or levies of any kind whatsoever, imposed by
authorities of the Buyer's country upon :
- the entry into or exit from the Buyer's country of the
Seller's Representatives and their families,
- the entry into or the exit from the Buyer's country of the
Seller's Representatives and their families' personal
property,
15.4 WITHDRAWAL OF THE SELLER'S REPRESENTATIVES
The Seller shall have the right to withdraw at its cost its
assigned Seller Representatives as it sees fit if conditions
arise which are in the Seller's opinion dangerous to their
safety or health or prevent them from fulfilling their
contractual tasks.
15.5 SELLER'S REPRESENTATIVES' STATUS
In providing the above technical services, the Seller's
Representatives and other employees are deemed to be acting in
an advisory capacity only and at no time shall they be deemed
to act as Buyer's employees or agents, either directly or
indirectly.
15.6 INDEMNITIES
INDEMNIFICATION PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE
SET FORTH IN CLAUSE 19.
SELLER REPRESENTATIVE ALLOCATION
The Seller Representative allocation that is provided to the
Buyer pursuant to Clause 15.2 is defined hereunder.
1 The Buyer shall be provided a total of [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
man-months of Seller Representative services at the Buyer's
main base or at other locations to be mutually agreed.
2 In addition, and to assist the Buyer with the entry into
service of the Aircraft, the Seller shall provide an
additional [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] of Seller Representatives
services.
3 The number of the Seller's Representatives assigned to the
Buyer at any one time shall be mutually agreed, but at no time
shall it exceed [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] men.
4 Absence of an assigned Seller's Representative during normal
statutory vacation periods not to exceed [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] per year are covered by the Seller's
Representatives as defined in Clause 15.2.2 and as such are
accounted against the total allocation provided in item 1
above.
16 TRAINING AND TRAINING AIDS
16.1 GENERAL
This Clause covers the terms and conditions for the supply of
training and training aids for the Buyer's personnel to
support the Aircraft operation.
16.2 SCOPE
16.2.1 The range and quantities of training and training aids to be
provided free of charge under this Agreement are covered in
Appendix A to this Clause 16. 16.2.2 The contractual training
courses shall be provided up to one (1) year after delivery of
the last Aircraft ordered under this Agreement.
16.2.3 In the event that the Buyer should use none or only part of
the training or training aids to be provided pursuant to this
Clause, no compensation or credit of any sort shall be
provided.
16.3 TRAINING ORGANIZATION / LOCATION
16.3.1 The Seller shall provide the training at its training center
in BLAGNAC, FRANCE, or one of its affiliated training centers,
acceptable to the Buyer.
16.3.2 In the event of the non-availability of facilities or
scheduling imperatives making training by the Seller
impractical, the Seller shall make arrangements for the
provision to the Buyer of such training support elsewhere.
16.3.3 Upon the Buyer's request the Seller may also provide certain
training at one of the Buyer's bases, if and when practicable
for the Seller, under terms and conditions to be mutually
agreed upon. In this event, all additional reasonable charges
listed in sub-Clause 16.6.2 shall be borne by the Buyer.
16.4 TRAINING COURSES
16.4.1 Training courses, as well as the minimum and maximum numbers
of trainees per course provided for the Buyer's personnel are
defined in the applicable brochure describing the various
Seller's training courses ("the Seller's Training Course
Catalog") and will be scheduled as mutually agreed upon during
a training conference ("the Training Conference") to be held
at least twelve (12) months prior to delivery of the first
Aircraft.
16.4.2 When training is performed by the Seller:
(i) Training courses shall be the Seller's standard
courses as described in the Seller's applicable
Training Course Catalog valid at the time of the
execution of the course. The Seller shall be
responsible for all training course syllabi,
training aids and training equipment necessary for
the organization of the training courses;
(ii) The training curricula and the training equipment
may not be fully customized. However, academic
curricula may be modified to include the most
significant of the Buyer's Aircraft Specification
(to the exclusion of Buyer Furnished Equipment) as
known at the latest six (6) months prior to the
date of the first training course planned for the
Buyer. The equipment used for training of flight
and maintenance personnel shall not be fully
customized; however, this equipment shall be
configured in order to obtain the relevant Aviation
Authority's approval and to support the Seller's
teaching programs. Training data and documentation
shall not be revised ;
(iii) Training data and documentation for trainees
receiving the contractual training at the Seller's
training centers shall be free-of-charge. Training
data and documentation shall be marked "FOR
TRAINING ONLY" and as such are supplied for the
sole and express purpose of training ;
(iv) Upon the request of the Buyer, the Seller will
collect and pack for consolidated shipment to the
Buyer's facility, all training data and
documentation of the
Buyer's trainees attending training at the Seller's
training center in BLAGNAC, FRANCE at no charge to
the Buyer ;
The above shipment shall be delivered Free Carrier
("FCA") Toulouse, Blagnac Airport, as the term Free Carrier ("FCA") is
defined by publication N(degree)560 of the International Chamber of
Commerce published in January 2000. Title to and risk of loss of said
shipment shall pass to the Buyer upon delivery.
16.4.3 In the event of the Buyer deciding to cancel or re-schedule a
training course, a minimum advance notice of [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] calendar days shall be required. Any later
cancellation or change, when courses cannot be allocated to
other customers, shall be deducted from the training
allowances defined herein or be charged to the Buyer, as
applicable. The number of crews or trainee days which shall be
deducted shall correspond to the actual number of crews or
trainee days which had been originally planned.
16.4.4 In fulfillment of its obligation to provide training courses,
when the Seller performs the training courses, the Seller
shall deliver to the trainees a certificate of completion at
the end of any such training course. The Seller's certificate
does not represent authority or qualification by any official
Aviation Authorities but may be presented to such officials in
order to obtain relevant formal qualification.
In the event of the training being provided by a training
provider selected by the Seller, the Seller shall cause such
training provider to deliver a certificate of completion at
the end of any such training course. Such certificate shall
not represent authority or qualification by any official
Aviation Authorities but may be presented to such officials in
order to obtain relevant formal qualification
16.5 PREREQUISITES
16.5.1 Training will be conducted in English and all training aids
are written in English using common aeronautical terminology.
Trainees must have the prerequisite experience as defined in
Appendix "B" to this Clause 16.
It is clearly understood that the Seller's training courses
are "Transition Training Courses" and not "Ab Initio Training
Courses".
Furthermore, the Buyer shall be responsible for the selection
of the trainees and for any liability with respect to the
entry knowledge level of the trainees.
16.5.2 The Buyer shall provide the Seller with an attendance list of
the trainees for each course with the validated qualification
of each trainee. The Seller reserves the right to check the
trainees' proficiency and previous professional experience.
The Seller shall in no case warrant or otherwise be held
liable for any trainee's performance as a result of any
training services thus provided.
16.5.3 Upon the Buyer's request, the Seller may be consulted to
direct the above mentioned trainee(s) through a relevant entry
level training program, which shall be at the Buyer's charge,
and, if necessary, to coordinate with competent outside
organizations for this purpose. Such consultation shall be
held during the Training Conference.
In the event the Seller should determine that a trainee lacks
the required entry level, such trainee shall, following
consultation with the Buyer, be withdrawn from the program and
shall then be considered to be at the Buyer's disposal.
16.6 LOGISTICS
16.6.1 TRAINEES
16.6.1.1 The Seller shall provide free local transportation by bus for
the Buyer's trainees to and from designated pick up points and
the Seller's or the Seller's affiliated training center.
16.6.1.2 Living expenses for the Buyer's trainees are to be borne by
the Buyer.
16.6.2 SELLER'S INSTRUCTORS -- TRAINING AT EXTERNAL LOCATION
In the event that training is provided by the Seller's
instructors at any location other than the Seller's training
centers, the Buyer shall reimburse the Seller for the expenses
as agreed during the Training Conference, related to the
assignment of such instructors and their performance of the
duties as aforesaid.
16.6.2.1 LIVING EXPENSES
Such expenses, covering the entire period from day of
secondment to day of return to the Seller's base, shall
include but shall not be limited to lodging, food and local
transportation to and from the place of lodging and the
training course location. The Buyer shall reimburse the Seller
for such expenses as agreed during the Training Conference, on
the basis of a per diem rate corresponding to the current per
diem rate used by the Seller for its personnel.
16.6.2.2 AIR TRAVEL
The Buyer will provide the Seller tickets for the Seller's
instructors in confirmed business class (if available) to and
from the Buyer's designated training site and the Seller's
training center.
16.6.2.3 TRAINING MATERIAL
The Buyer shall reimburse the Seller the cost of shipment for
the training material needed to conduct such courses.
16.6.2.4 TRANSPORTATION SERVICES
The Buyer shall be solely liable for any and all delay in the
performance of the training outside of the Seller's training
centers associated with the transportation services described
above.
16.6.3 TRAINING EQUIPMENT AVAILABILITY - TRAINING AT EXTERNAL
LOCATION
Training equipment necessary for course performance at any
course location other than the Seller's training centers or
the facilities of the training provider selected by the Seller
shall be provided by the Buyer in accordance with the Seller's
specifications.
16.7 FLIGHT OPERATIONS TRAINING
16.7.1 FLIGHT CREW TRAINING COURSE
16.7.1.1 The Seller shall perform a flight crew training course program
(regular transition program or a cross crew qualification
program as applicable) for the Buyer's flight crews, each of
which shall consist of one captain (1) and one (1) first
officer, as defined in Appendix A to this Clause 16. The
training manual used shall be the Seller's Flight Crew
Operating Manual. Upon Buyer's request, the Buyer
documentation may be used, provided the content of such
documentation is not in conflict with the Seller's Flight Crew
Operating Manual.
The Buyer shall provide the Seller with an attendance list of
trainees and return to the Seller the Airbus Trainee
Questionnaire detailing the associated pilot background at the
latest one (1) month before the start of the training course.
16.7.1.2 Whenever base flight training is required, the Buyer shall use
its delivered Aircraft for said base flight training, which
shall not exceed one (1) session of one and a half (1.5) hours
per pilot. When such base flight crew training is performed at
a designated site of the Seller, the Seller shall provide
free-of-charge line maintenance, including servicing,
preflight checks and changing of minor components, subject to
conditions agreed in the present Agreement.
16.7.1.3 The Buyer shall provide mutually agreed spare parts as
required to support said Aircraft in-flight training and shall
provide insurance in line with Clause 16.12.
16.7.1.4 In all cases, the Buyer shall bear all expenses such as fuel,
oil and landing fees.
16.7.2 FLIGHT CREW LINE INITIAL OPERATING EXPERIENCE
16.7.2.1 In order to assist the Buyer with initial operating experience
after delivery of the first Aircraft, the Seller shall provide
to the Buyer pilot instructor(s) as defined in Appendix A to
this Clause 16.
16.7.2.2 The Buyer shall reimburse the expenses for each such
instructor in accordance with Clause 16.6.2. Additional pilot
instructors can be provided at the Buyer's expense and upon
conditions to be mutually agreed upon.
16.7.3 CABIN ATTENDANTS' FAMILIARIZATION COURSE
The Seller shall provide cabin attendants' course(s) to the
Buyer's cabin attendants, as defined in Appendix A to this
Clause 16.
The cabin attendants' course, when incorporating the features
of the Buyer's Aircraft, can be given at the earliest two (2)
weeks before the delivery date of the Buyer's first Aircraft.
16.7.4 PERFORMANCE / OPERATIONS COURSE
The Seller shall provide performance/operations training for
the Buyer's personnel as defined in Appendix A to this Clause
16.
The available courses are listed in the Seller's applicable
Training Courses Catalog.
16.8 MAINTENANCE TRAINING
The Seller shall provide maintenance training for the Buyer's
ground personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Seller's applicable
Training Courses Catalog.
The Buyer shall provide the Seller with an attendance list of
trainees at the latest one (1) month before the start of the
training course.
16.8.1 ON-THE-JOB TRAINING
Upon the Buyer's request, the Seller may be consulted to
identify competent outside organizations to provide on-the-job
training, which shall be at the Buyer's charge.
16.8.2 LINE MAINTENANCE INITIAL OPERATING EXPERIENCE TRAINING
In order to assist the Buyer during the entry into service of
the Aircraft, the Seller shall provide to the Buyer
maintenance instructor(s) at the Buyer's base as defined in
Appendix A to this Clause 16.
16.8.2.1 This line maintenance training shall cover training in
handling and servicing of Aircraft, flight crew / maintenance
coordination, use of Technical Data and Documentation, CAATS,
ADRES, and any other activities which may be deemed necessary
after delivery of the first Aircraft.
16.8.2.2 The Buyer shall reimburse the expenses for said instructor(s)
in accordance with Clause 16.6.2. Additional maintenance
instructors can be provided at the Buyer's expense.
16.9 SUPPLIER AND ENGINE MANUFACTURER TRAINING
The Seller shall ensure that major Suppliers and the
applicable Propulsion System Manufacturer provide maintenance
training and overhaul training on their products at
appropriate times.
A list of the Suppliers concerned may be supplied to the Buyer
upon request.
16.10 TRAINING AIDS FOR THE BUYER'S TRAINING ORGANIZATION
16.10.1 The Seller shall provide to the Buyer the AIRBUS COMPUTER
BASED TRAINING (AIRBUS CBT) and training aids, as used in the
Seller's training centers, free of charge as defined in
Appendix A to this Clause 16.
The Airbus CBT and training aids supplied to the Buyer shall
be similar to those used in the Seller's training centers for
the training provided for the Buyer. The Airbus CBT shall be
revised during the period when training courses covered by
this Agreement are performed for the Buyer in the Seller's
training center and within the limit defined in Clause 16.2.2.
16.10.2 DELIVERY
16.10.2.1 The Seller shall deliver to the Buyer the Airbus CBT and
training aids as defined in Appendix A to this Clause 16, at a
date to be mutually agreed during the Training Conference.
16.10.2.2 Those items supplied to the Buyer pursuant to Clause 16.10.1
above shall be delivered FCA Toulouse, Blagnac Airport. Title
to and risk of loss of said items shall pass to the Buyer upon
delivery.
16.10.2.3 All costs related to transportation and insurance of said
items from the FCA point to the Buyer's facilities shall be at
the Buyer's expense.
16.10.3 INSTALLATION
16.10.3.1 Upon the Buyer's request, the Seller may assist the Buyer with
the initial installation of the Airbus CBT at the Buyer's
facility following notification in writing that the various
components, which are in accordance with specifications
defined in the Airbus CBT Technical Catalog, are ready for
installation and available at the Buyer's facility.
16.10.3.2 The Buyer shall provide any and all the necessary hardware on
which the Airbus CBT shall be installed and Seller shall not
be responsible for any incompatibility of such hardware with
the Airbus CBT.
16.10.3.3 The Airbus CBT will be installed by the Buyer's personnel, who
shall have followed the Seller's Airbus CBT Familiarization,
and the Seller shall be held harmless from any damage to
person and/or to property caused by or in any way connected
with the handling and/or installation of the Airbus CBT by the
Buyer's personnel.
16.10.3.4 The Buyer shall reimburse the expenses in accordance with
Clause 16.6.2, for the Seller's personnel required at the
Buyer's facility to conduct Airbus CBT Familiarization and/or
provide installation assistance.
16.10.4 LICENSE
16.10.4.1 The Seller shall grant the Buyer a Licence to use the Airbus
CBT, as defined in Appendix C to this Clause 16.
16.10.4.2 Supply of additional sets of courseware supports, as well as
any extension to the Licence of such courseware, shall be
subject to terms and conditions to be mutually agreed.
16.10.5 The Seller shall not be responsible and hereby disclaims any
and all liabilities resulting from or in connection with the
use by the Buyer of the Airbus CBT and training aids at the
Buyer's facilities.
16.11 PROPRIETARY RIGHTS
The Seller's training data and documentation, Airbus CBT and
training aids are proprietary to the Seller and its suppliers
and the Buyer agrees not to disclose the content of the
courseware or any information or documentation provided by the
Seller in relation to training in whole or in part, to any
third party without the prior written consent of the Seller.
16.12 INDEMNITIES AND INSURANCE
Indemnification provisions and insurance requirements
applicable to this clause 16 are as set forth in Clause 19.
APPENDIX "A" TO CLAUSE 16
TRAINING ALLOWANCE
1. FLIGHT OPERATIONS TRAINING
1.1 FLIGHT CREW TRAINING (REGULAR TRANSITION OR CROSS CREW
QUALIFICATION (CCQ) AS APPLICABLE)
The Seller shall provide flight crew training (regular
transition or CCQ as applicable) free of charge for
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] of the Buyer's flight crews per firmly
ordered Aircraft.
1.2 FLIGHT CREW LINE INITIAL OPERATING EXPERIENCE
The Seller shall provide to the Buyer pilot instructor(s) free
of charge for a period of [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] pilot
instructor months.
1.2.1 The maximum number of pilot instructors present at any one
time shall be limited to two (2) pilot instructors.
1.3 CABIN ATTENDANTS' FAMILIARIZATION COURSE
The Seller shall provide to the Buyer cabin attendants'
training free of charge for [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] of the
Buyer's cabin attendants.
1.4 PERFORMANCE / OPERATIONS COURSE(S)
1.4.1 The Seller shall provide to the Buyer [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
trainee days of performance / operations training free of
charge for the Buyer's personnel.
1.4.2 The above trainee days shall be used solely for the
performance/operations training courses as defined in the
Seller's applicable Training Course Catalog.
2 MAINTENANCE TRAINING
2.1 MAINTENANCE TRAINING COURSES
2.1.1 The Seller shall provide to the Buyer [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
trainee days of maintenance training free of charge for the
Buyer's personnel.
2.1.2 The above trainee days shall be used solely for the
Maintenance training courses as defined in the Seller's
applicable Training Courses Catalog.
2.1.3 Notwithstanding the trainee days allowance in Clause 2.1.1
above, the number of Engine Run-up courses shall be limited to
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] per firmly ordered Aircraft.
2.2 LINE MAINTENANCE INITIAL OPERATING EXPERIENCE TRAINING
The Seller shall provide to the Buyer maintenance
instructor(s) at the Buyer's base free of charge for periods
weeks [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT] each, up to the "A" check.
3 TRAINEE DAYS ACCOUNTING
Trainee days are counted as follows:
- for instruction at the Seller's training centers :one (1)
day of instruction for one (1) trainee equals one (1)
trainee day. The number of trainees at the beginning of
the course shall be counted as the number of trainees
considered to have taken the course.
- for instruction outside of the Seller's training centers :
one (1) day of secondment of one (1) Seller instructor
equals the actual number of trainees attending the course
or a minimum of twelve (12) trainee days.
4 TRAINING AIDS FOR BUYER'S TRAINING ORGANIZATION
The Seller shall provide to the Buyer [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Airbus CBT for workstation(s) as related to the Aircraft
type(s) as covered by this Agreement. The detailed description
of the Airbus CBT will be provided to the Buyer at the
Training Conference.
APPENDIX "B" TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
(Regular Transition Courses)
The prerequisites listed below are the minimum recommended requirements
specified for Airbus training. If the appropriate regulatory agency or the
specific airline policy of the trainee demand greater or additional
requirements, they shall apply as prerequisites.
- CAPTAIN prerequisites
. Fluency in English
. 1500 hours minimum flying experience as pilot
. 1000 hours experience on FAR/JAR 25 aircraft
. 200 hours experience as airline, corporate pilot or military
pilot
. Must have flown transport type aircraft, as flying pilot,
within the last 12 months.
- FIRST OFFICER prerequisites
. Fluency in English
. 500 hours minimum flying experience as pilot of fixed wing
aircraft
. 300 hours experience on FAR/JAR 25 aircraft
. 200 hours flying experience as airline pilot or a corporate
pilot or military pilot
. Must have flown transport type aircraft, as flying pilot,
within the last 12 months.
For both CAPTAIN and FIRST OFFICER, if one or several of the
above criteria are not met, the trainee must follow:
(i) an adapted course (example : if not fluent in
English, an adapted course with a translator) or,
(ii) an ELT (Entry Level Training) program before coming
to the training center to follow the regular or the
adapted course.
Such course(s), if required, shall be at the Buyer's expense.
- Maintenance Personnel prerequisites
. Fluency in English
. Experience on first or second jet transport category
aircraft
. Qualification as line or line and base mechanic on one type
of Airbus aircraft family (for Aircraft Rigging Course).
. Qualification as line or line and base mechanic on the
concerned Airbus aircraft type (for Maintenance Initial
Operating Experience Course).
APPENDIX C TO CLAUSE 16
LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINING
LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINING (AIRBUS CBT)
1 DEFINITIONS
1.1 For the purpose of this Appendix C to Clause 16, the following
definitions shall apply :
1.1.1 " AIRBUS CBT" means the combination of the Airbus CBT Software and the
Airbus CBT Courseware.
1.1.2 " AIRBUS CBT COURSEWARE" means the programmed instructions that provide
flight crew and maintenance training.
1.1.3 " AIRBUS CBT SOFTWARE" means the system software that permits the use
of the Airbus CBT Courseware.
1.1.4 "STUDENT / INSTRUCTOR MODE" means the mode that allows the user to run
the Airbus CBT Courseware.
1.1.5 " AIRBUS CBT FAMILIARIZATION " means the training enabling the Buyer to
load and use the Airbus CBT.
1.1.6 "USER GUIDE" means the documentation, which may be in electronic
format, designed to assist the Buyer to use the Airbus CBT.
1.2 For the purpose of clarification, it is hereby stated that all related
hardware required for the operation of the Airbus CBT is not part of
the Airbus CBT and shall be procured under the sole responsibility of
the Buyer.
2 GRANT
The Seller grants the Buyer the right, pursuant to the terms and
conditions herein, to use the Airbus CBT for the Term of this licence
("AIRBUS CBT LICENCE").
3 COPIES
3.1 The Buyer shall be permitted to copy the Airbus CBT Software for
back-up and archiving purposes and for loading of the Airbus CBT
Software exclusively on the Buyer's workstations. In such cases, the
Buyer shall advise the Seller in writing stating the number and purpose
of any copies made. Any other copy is strictly prohibited.
3.2 The Buyer agrees to reproduce the copyright and other notices as they
appear on or within the original media on any copies that the Buyer
makes of the Airbus CBT Software.
4 TERM
The rights under this Airbus CBT Licence shall be granted to the Buyer
for as long as the Buyer operates the Seller's Aircraft model to which
the Airbus CBT Software and the Airbus CBT Courseware apply. When the
Buyer stops operating said Aircraft model, the Buyer shall return the
Airbus CBT and any copies thereof to the Seller, accompanied by a note
certifying that the Buyer has returned all existing copies.
5 PERSONAL ON-SITE LICENCE
5.1 The above described Licence is personal to the Buyer for use of the
Airbus CBT for the training of the Buyer's personnel within the Buyer's
premises only, and is non-transferable and non-exclusive.
5.2 The Buyer shall not (i) distribute or sub-licence any portion of the
Airbus CBT, (ii) modify or prepare derivative works from the Airbus CBT
Software, (iii) publicly display visual output of the Airbus CBT
Software, (iv) transmit the Airbus CBT Software electronically by any
means.
5.3 The Buyer shall use the Airbus CBT exclusively in the technical
environment defined in the User Guide.
Notwithstanding the above, the right to use the Airbus CBT on the
Buyer's internal network installation is granted to the Buyer subject
to the Buyer strictly complying with the conditions of use and the
confidentiality commitments set forth in this Airbus CBT Licence.
6 CONDITIONS OF USE
6.1 USE OF THE AIRBUS CBT SOFTWARE
The Buyer shall use the Airbus CBT Software for the exclusive purpose
of, for the student delivery mode:
(i) rostering students for one or several courses syllabi in order
to follow students' progression,
(ii) rearranging courses syllabi or creating new ones using
available courseware modules.
However, the Seller disclaims any responsibility regarding any
course(s) that may be modified or rearranged by the Buyer.
6.2 USE OF THE AIRBUS CBT COURSEWARE
The Buyer shall use the Airbus CBT Courseware for the exclusive purpose
of performing training instructions for its personnel, or for third
party personnel contracted to perform work on the Buyer's Aircraft on
behalf of the Buyer. Such training will be performed at the Buyer's
facility or at a subcontractor's facility provided it is conducted by
the Buyer's personnel.
7 PROPRIETARY RIGHTS AND NON DISCLOSURE
The Airbus CBT Software and Airbus CBT Courseware, the copyrights and
any and all other author rights, intellectual, commercial or industrial
proprietary rights of whatever nature in the Airbus CBT Software and
Airbus CBT Courseware are and shall remain with the Seller or its
suppliers, as the case may be. The Airbus CBT Software and Airbus CBT
Courseware and their contents are designated as confidential. The Buyer
shall not take any commercial advantage by copy or presentation to
third parties of the Airbus CBT Software, the documentation, the Airbus
CBT Courseware, and/or any rearrangement, modification or copy thereof.
The Buyer acknowledges the Seller's proprietary rights in the Airbus
CBT and undertakes not to disclose the Airbus CBT Software or Airbus
CBT Courseware or parts thereof or their contents to any third party
without the prior written consent of Seller. Insofar as it is necessary
to disclose aspects of the Airbus CBT Software and Airbus CBT
Courseware to the Buyer's personnel, such disclosure is permitted only
for the purpose for which the Airbus CBT Software and Airbus CBT
Courseware are supplied to the Buyer under the present Airbus CBT
Licence.
8 WARRANTY
8.1 The Seller warrants that the Airbus CBT is prepared in accordance with
the state of art at the date of its conception. Should the Airbus CBT
found to contain any non-conformity or defect, the Buyer shall notify
the Seller promptly thereof and the sole and exclusive liability of the
Seller under this Clause 8.1 of the Airbus CBT Licence shall be to
correct the same at its own expense.
8.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND REMEDIES
OF THE BUYER SET FORTH IN THE AIRBUS CBT LICENCE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES,
ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY
OR
DEFECT IN AIRBUS CBT DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT
LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER
CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE
SELLER'S NEGLIGENCE, ACTUAL OR IMPUTED; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR
DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR
PART THEREOF.
THE SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING,
FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT
IN THE AIRBUS CBT DELIVERED UNDER THIS AGREEMENT.
17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
17.1 EQUIPMENT SUPPLIER PRODUCT SUPPORT AGREEMENTS
17.1.1 The Seller has obtained enforceable and transferable product
support agreements from Suppliers of Seller Furnished
Equipment listed in the Specification.
17.1.2 These agreements are based on the "World Airlines Suppliers
Guide" and include Supplier commitments as contained in the
"Supplier Product Support Agreements" which include the
following provisions :
17.1.2.1 Technical data and manuals required to operate, maintain,
service and overhaul the Supplier Parts. Such technical data
and manuals shall be prepared in accordance with the
applicable provisions of ATA Specification 100 and 101
including revision service and be published in the English
language. The Seller shall recommend that software data, where
applicable, is supplied in the form of an appendix to the
Component Maintenance Manual, such data will be provided in
compliance with ATA Specification 102 up to level 3.
17.1.2.2 Warranties and guarantees including standard warranties. In
addition, landing gear Suppliers shall provide service life
policies for selected structural landing gear elements.
17.1.2.3 Training to ensure efficient operation, maintenance and
overhaul of the Supplier Parts for the Buyer's instructors,
shop and line service personnel.
17.1.2.4 Spares data in compliance with ATA 200/2000 Specification,
initial provisioning recommendations, spare parts and logistic
service including routine and expedited deliveries.
17.1.2.5 Technical service to assist the Buyer with maintenance,
overhaul, repair, operation and inspection of Supplier Parts
as well as required tooling and spares provisioning.
17.2 SUPPLIER COMPLIANCE
The Seller shall monitor Supplier compliance with support
commitments defined in the "Supplier Product Support
Agreements" and shall take all remedial action together with
the Buyer if necessary.
18 BUYER FURNISHED EQUIPMENT
18.1 ADMINISTRATION
18.1.1 Without additional charge, the Seller shall provide for the
installation of those items of equipment which are identified
in the Specification as being furnished by the Buyer ("BUYER
FURNISHED EQUIPMENT" or "BFE"), provided that they are
referred to in the Airbus
BFE Catalog of Approved Suppliers by Products valid at time of
selecting the concerned BFE. [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
The Seller shall advise the Buyer of the dates by which, in
the planned release of engineering for the Aircraft, the
Seller requires a written detailed engineering definition
including the description of the dimensions and weight of BFE,
the information related to its certification and information
necessary for the installation and operation thereof. The
Buyer shall furnish such detailed description and information
by the dates so specified. Such information, dimensions and
weights shall not thereafter be revised unless authorised by a
Specification Change Notice.
The Seller shall also furnish in due time but in any event
prior to [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] to the Buyer a schedule of
dates and indication of shipping addresses for delivery of BFE
and, where requested by the Seller, additional spare BFE to
permit installation in the Aircraft and delivery of the
Aircraft in accordance with the delivery schedule. The Buyer
shall provide such equipment by such dates in a serviceable
condition, in order to allow performance of any assembly,
test, or acceptance process in accordance with the industrial
schedule.
The Buyer shall also provide, when requested by the Seller, at
AIRBUS FRANCE S.A.S. works in TOULOUSE (FRANCE) and/or at
AIRBUS DEUTSCHLAND GmbH, Division Hamburger Flugzeugbau Works
in HAMBURG (FEDERAL REPUBLIC OF GERMANY) adequate field
service including support from BFE suppliers to act in a
technical advisory capacity to the Seller in the installation,
calibration and possible repair of any BFE.
18.1.2 The Seller shall be entitled to refuse any item of BFE which
it considers incompatible with the Specification, the above
mentioned engineering definition or the certification
requirements.
18.1.3 The BFE shall be imported into FRANCE or into the FEDERAL
REPUBLIC OF GERMANY by the Buyer under a suspensive customs
system ("Regime de l'entrepot industriel pour fabrication
coordonnee" or "Zollverschluss") without application of any
French or German tax or customs duty, and shall be Delivered
Duty Unpaid (DDU) according to the Incoterms definition.
Shipping Addresses:
AIRBUS FRANCE S.A.S.
000 Xxxxx xx Xxxxxxx
00000 XXXXXXXX
XXXXXX
or
AIRBUS DEUTSCHLAND GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
00000 XXXXXXX
XXXXXXX XXXXXXXX OF GERMANY
as provided in Clause 18.1.
18.1.4 If the Buyer requests the Seller to supply directly certain
items which are considered as BFE according to the
Specification and if such request is notified to the Seller in
due time in order not to affect the Scheduled Delivery Month
of the Aircraft, the Seller may agree to order such items
subject to the execution of a Specification Change Notice
reflecting the effect on price, escalation adjustment, and any
other conditions of the Agreement, provided however that such
BFE is selected from the Airbus BFE Catalog of Approved
Suppliers. In such a case the Seller shall be entitled to the
payment of a reasonable handling charge and shall bear no
liability in respect of delay and product support
commitments for such items which shall be the subject of
separate arrangements between the Buyer and the relevant
supplier.
18.2 AVIATION AUTHORITIES' REQUIREMENTS
The Buyer is responsible for, at its expense, and warrants
that BFE shall be manufactured by a qualified supplier, shall
meet the requirements of the applicable Specification, shall
comply with applicable requirements incorporated by reference
to the Type Certificate and listed in the Type Certificate
Data Sheet, shall be approved by the Aviation Authorities
delivering the Export Certificate of Airworthiness and by the
Buyer's Aviation Authority for installation and use on the
Aircraft at the time of Delivery of such Aircraft.
18.3 BUYER'S OBLIGATION AND SELLER'S REMEDIES
18.3.1 Any delay or failure in complying with the foregoing warranty
or in providing the descriptive information or service
representatives mentioned in Clause 18.1 or in furnishing the
BFE in serviceable condition at the requested delivery date or
in obtaining any required approval for such equipment under
the above mentioned Aviation Authorities regulations may
reasonably delay the performance of any act to be performed by
the Seller, and cause the Final Price of the Aircraft to be
adjusted in accordance with the updated delivery schedule and
to include in particular the amount of the Seller's reasonable
additional costs, attributable to such delay or failure such
as storage, taxes, insurance and costs of out-of sequence
installation.
18.3.2 Further, in any such event, the Seller may:
(i) select, purchase and install an equipment similar to the
involved one and reasonably acceptable to the Buyer, in
which event the Final Price of the affected Aircraft
shall also be increased by the purchase price of such
equipment plus reasonable costs and expenses incurred by
the Seller for handling charges, transportation,
insurance, packaging and if so required and not already
provided for in the price of the Aircraft for adjustment
and calibration; or
(ii) if the BFE shall be so delayed by more than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT], or unapproved within
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] deliver the Aircraft
without the installation of such equipment,
notwithstanding the terms of Clause 7 insofar as it may
otherwise have applied, and the Seller shall thereupon be
relieved of all obligations to install such equipment.
The Buyer may also elect to have the Aircraft so
delivered.
18.4 TITLE AND RISK OF LOSS
Title to and risk of loss of any BFE shall at all times remain
with the Buyer except that risk of loss (limited to cost of
replacement of said BFE and excluding in particular loss of
use) shall be with the Seller for as long as such BFE shall be
under the care, custody and control of the Seller, including
for the avoidance of doubt, periods during which the Seller
either stores, transports inside the Manufacture Facilities,
installs or tests the BFE.
In the event of a delay resulting from the loss or replacement
of the BFE whilst in the care of the Seller , Clause 10 or 11
shall apply as the case may be.
19 INDEMNIFICATION AND INSURANCE
19.1 INDEMNITIES RELATING TO INSPECTION, TECHNICAL ACCEPTANCE
PROCESS AND GROUND TRAINING
19.1.1 The Seller shall, except in case of Gross Negligence of the
Buyer, its directors, officers, agents or employees, be solely
liable for and shall indemnify and hold harmless the Buyer,
its directors, officers, agents and employees from and against
all liabilities, claims, damages, costs and expenses
(including legal expenses and attorney fees) in respect of
loss of or damage to the Seller's property and/or injury to or
death of the directors, officers, agents or employees of the
Seller and/or from and against all liabilities, claims,
damages, costs and expenses (including legal expenses and
attorney fees) for any damages caused by the Seller to third
parties, caused by or in any way connected with any ground
check, technical acceptance flight, check or controls under
Clause 6 or Clause 8 of this Agreement and/or Ground Training
Services.
19.1.2 The Buyer shall, except in case of Gross Negligence of the
Seller, its directors, officers, agents or employees, be
solely liable for and shall indemnify and hold harmless the
Seller, its subsidiaries and their respective insurers from
and against all liabilities, claims, damages, costs and
expenses (including legal expenses and attorney fees) in
respect of loss of or damage to the Buyer's property and/or
injury to or death of the directors, officers, agents or
employees of the Buyer and/or from and against all
liabilities, claims, damages, costs and expenses (including
legal expenses and attorney fees) for any damages caused by
the Buyer to third parties, caused by or in any way connected
with any ground check, technical acceptance flight, check or
controls under Clause 6 or Clause 8 of this Agreement and/or
Ground Training Services.
19.2 INDEMNITIES RELATING TO TRAINING ON AIRCRAFT
19.2.1 The Buyer shall, except in the case of Gross Negligence of the
Seller, its directors, officers, agents and employees, be
solely liable for and shall indemnify and hold harmless the
Seller , its subsidiaries and their respective insurers from
and against all liabilities, claims, damages, costs and
expenses (including legal expenses and attorney fees) incident
thereto or incident to successfully establishing the right to
indemnification, for injury to or death of any person
(including any of the Buyer's directors, officers, agents and
employees utilising such training services, but not directors,
officers, agents and employees of the Seller) and/or for loss
of or damage to any property and/or for loss of use thereof
arising (including the aircraft on which the training services
are performed), caused by or in any way connected to the
performance of any Aircraft Training Services.
19.2.2 The foregoing indemnity shall not apply to legal liability to
any person other than the Buyer, its directors, officers,
agents or employees arising out of an accident caused
primarily by a product defect in the Aircraft delivered to and
accepted by the Buyer hereunder.
19.3 INDEMNITIES RELATING TO SELLER REPRESENTATIVES SERVICES
19.3.1 The Buyer shall, except in case of Gross Negligence of the
Seller, and/or its subsidiaries, be solely liable for and
shall indemnify and hold harmless the Seller , its
subsidiaries and their respective insurers, from and against
all liabilities, claims, damages, costs and expenses
(including legal expenses and attorney fees) for all injuries
to or death of persons (excepting injuries to or death of the
Seller's Representatives) and for loss or damage to property
and/or loss of use thereof howsoever arising out of or in
connection with the Seller Representatives Services.
19.3.2 The Seller shall, except in case of Gross Negligence of the
Buyer, and/or its subsidiaries, its directors, officers,
agents or employees, be solely liable for and shall indemnify
and hold harmless the Buyer, and/or its subsidiaries, its
directors, officers, agents and employees from and against all
liabilities, claims, damages, costs and expenses (including
legal expenses and attorney fees) for all injuries to or death
of the Seller's Representatives in connection with the Sellers
Representatives Services.
19.4 INSURANCES
19.4.1 The Buyer and the Seller shall maintain adequate insurance
with respect to their respective undertakings pursuant to
Clauses 19. and shall provide upon the request of the other
party certificates of insurance in English attesting to such
insurance coverage, in a form acceptable to the other parties
insurance brokers.
19.4.2 For all training periods on aircraft, the Buyer shall cause
the Seller, its subsidiaries, the associated contractors and
sub-contractors and the assignees of each of the foregoing and
their respective directors, officers, agents and employees and
their respective insurers to be named as additional insureds
under all liability policies of the Buyer to the extent of the
Buyer's undertaking set forth in Clause 19.2.1. With respect
to the Buyer's hull all risks
and hull war risks insurances, the Buyer shall cause the
insurers of the Buyer's hull insurance policies to waive all
rights of subrogation against the Seller, its subsidiaries,
the associated contractors and sub-contractors and the
assignees of each of the foregoing and their respective
directors, officers, agents and employees and their respective
insurers, to the extent of the Buyer's undertaking set forth
in Clause 19.2.1.
Any applicable deductible shall be borne by the Buyer. With
respect to the above policies, the Buyer shall furnish to the
Seller, not less than seven (7) working days prior to the
start of any such training period, certificates of insurance,
in English, evidencing the limit of liability cover and period
of insurance in a form acceptable to the Seller from the
Buyer's insurance brokers certifying that such policies have
been endorsed as follows:
(i) The Buyer's policies shall be primary and
non-contributory to any insurance maintained by the
Seller.
(ii) Such insurance shall not become ineffective, cancelled,
or coverage decreased or materially changed except on
seven (7) days' prior written notice thereof to the
Seller; and
(iii) Under any such cover, all rights of subrogation against
the Seller, its subsidiaries, each of the associated
contractors and subcontractors, the assignees of each
of the foregoing and their respective directors,
officers, agents and employees and their respective
insurers, have been waived to the extent of the Buyer's
undertaking and specifically referring to Clause
19.2.1.and to this Clause 19.4.2.
19.5 SELLER'S SUBSIDIARIES
For the purposes of this Clause 19, "the Seller and its
subsidiaries" includes the Seller, its subsidiaries, Airbus
S.A.S., Airbus Service Company, Hua-Ou Airbus - CASC Aviation
Training Center, each of the associated contractors, and
sub-contractors, the assignees of each of the foregoing, and
their respective directors, officers, agents and employees.
19.6 NOTICE OF CLAIMS
If any claim is made or suit is brought against either party
(or its respective directors, officers, agents or employees)
for damages for which liability has been assumed by the other
party in accordance with the provisions of this Agreement, the
party against which a claim is so made or suit is so brought
shall promptly give notice to the other party, and the latter
shall (unless otherwise requested by the former party against
which a claim is so made or suit is so brought, in which case
the other party nevertheless shall have the right to) assume
and conduct the defence thereof, or effect any settlement
which it, in its opinion, deems proper.
20 TERMINATION
20.1 TERMINATION FOR INSOLVENCY
In the event that either the Seller or the Buyer:
(a) makes a general assignment for the benefit of creditors
or becomes insolvent;
(b) files a voluntary petition in bankruptcy;
(c) petitions for or acquiesces in the appointment of any
receiver, trustee or similar officer to liquidate or
conserve its business or any substantial part of its
assets;
(d) commences under the laws of any competent jurisdiction
any proceeding involving its insolvency, bankruptcy,
readjustment of debt, liquidation or any other similar
proceeding for the relief of financially distressed
debtors;
(e) becomes the object of any proceeding or action of the
type described in (c) or (d) above and such proceeding
or action remains undismissed or unstayed for a period
of at least [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT]; or
then the other party may, to the full extent permitted by law,
by written notice, terminate all or part of this Agreement.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
20.2 TERMINATION FOR NON-PAYMENT OF PREDELIVERY PAYMENTS
If for any Aircraft the Buyer fails to make any Predelivery
Payments within [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] of the due
date therefor, in the manner and in the amount specified in
Clause 5.3 the Seller may [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] terminate
all or part of this Agreement with respect to undelivered
Aircraft [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
20.3 TERMINATION FOR FAILURE TO TAKE DELIVERY
If the Buyer fails to comply with its obligations as set forth
under Clause 8 and/or Clause 9, or fails to pay the Final
Price of the Aircraft, the Seller shall have the right to put
the Buyer on notice to do so [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
If the Buyer has not cured such default [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT],
the Seller may, by written notice, terminate all or part of
this Agreement with respect to undelivered Aircraft.
All costs referred to in Clause 9.2.3 and relating to the
period between the notified date of delivery (as referred to
in Clause 9.2.3) and the date of termination of all or part of
this Agreement shall be borne by the Buyer.
20.4 TERMINATION FOR DEFAULT UNDER OTHER AGREEMENTS
If the Buyer fails to perform or comply with any material
obligation expressed to be assumed by it in any other
agreement between Buyer and Seller or any of its asset
management or financing affiliates and such failure is not
remedied within [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] after the
Seller has given notice thereof to the Buyer, then the Seller
may, by written notice, terminate all or part of this
Agreement.
20.5 GENERAL
20.5.1 To the full extent permitted by law, the termination of all or
part of this Agreement pursuant to Clauses 20.1, 20.2, 20.3
and 20.4 shall become effective immediately upon receipt by
the relevant party of the notice of termination sent by the
other party without it being necessary for either party to
take any further action or to seek any consent from the other
party or any court having jurisdiction.
20.5.2 The right for either party under Clause 20.1 and for the
Seller under Clauses 20.2, 20.3, and 20.4 to terminate all or
part of this Agreement shall be without prejudice to any other
rights and remedies available to such party to seek
termination of all or part of this Agreement before any court
having jurisdiction pursuant to any failure by the other party
to perform its obligations under this Agreement.
20.5.3 If the party taking the initiative of terminating this
Agreement decides to terminate part of it only, the notice
sent to the other party shall specify those provisions of this
Agreement which shall be terminated.
20.5.4 In the event of termination of this Agreement following a
default from the Buyer, including but not limited to a default
under Clauses 20.1, 20.2, 20.3 and 20.4, the Seller without
prejudice to any other rights and remedies available under
this Agreement or by law, shall retain an amount equal to all
predelivery payments, deposits, option fees and any other
monies paid by the Buyer to the Seller under this Agreement
and corresponding to the Aircraft, services, data and other
items covered by such termination.
21 ASSIGNMENTS AND TRANSFERS
21.1 ASSIGNMENTS BY BUYER AND SELLER
Except as hereinafter provided, neither party may sell,
assign, novate or transfer its rights and obligations under
this Agreement to any person without the prior written consent
of the other party, which shall not unreasonably be withheld.
21.1.1 ASSIGNMENTS FOR PREDELIVERY FINANCING
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
21.1.2 ASSIGNMENTS FOR DELIVERY FINANCING
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
21.2 TRANSFER OF RIGHTS AND OBLIGATIONS UPON REORGANISATION
If at any time until the date upon which all the obligations
and liabilities of the Seller or the Buyer under this
Agreement have been discharged, the legal structure, the
membership or the business of either party is reorganised or
the legal form of either party is changed ("the Affected
Party") and as a consequence thereof the Affected Party wishes
the other party to accept the substitution of the Affected
Party by another entity within the Affected Party's
restructured group (or the Affected Party in its new legal
form) ("NEWCO") as contemplated below, such Affected Party
shall promptly notify the other party of its wish.
In such event, the Affected Party may request the other party
to enter into a novation agreement and/or other agreement
having the same effect whereby the Affected Party's rights and
obligations under this Agreement are novated or transferred in
favour of Newco. Upon receipt of such request, the other party
shall enter into a novation agreement and/or other appropriate
documentation provided that the other party's rights and
obligations under this Agreement are not materially adversely
affected by such novation/transfer.
Until any such novation agreement/other appropriate
documentation has come into effect, this Agreement shall
remain in full force and effect, and each party shall act
diligently and in good faith to implement the novation
agreement/appropriate existence.
21.3 NO INCREASE OF LIABILITY
The consent of either party to the assignment of the other
party's rights and/or obligations under this Agreement will be
subject to such party not incurring any liability beyond that
in this Agreement and that such assignment shall not adversely
affect such party's obligation under this Agreement.
22 MISCELLANEOUS PROVISIONS
22.1 DATA RETRIEVAL
The Buyer shall provide the Seller with mutually agreed data
(including format and frequency of that data) pertaining to
the operation of the Aircraft to assist the Seller in making
efficient and coordinated survey of all reliability,
maintainability, operational and cost data with a view to
improving the safety, availability and operational costs of
the Aircraft. This data shall be treated as confidential by
the Seller. [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
22.2 NOTICES
All notices and requests required or authorised hereunder
shall be given in writing either by personal delivery to an
authorised representative of the party to whom the same is
given or by registered mail (return receipt requested) or by
fax and the date upon which any such notice or request is so
personally delivered or if such notice or request is served
facsimile, the date of despatch with confirmed transmission
report stating the correct facsimile number and number of
pages and that such transmission is "OK" or equivalent, shall
be deemed to be the effective date of such notice or request
(provided always that in the case of a notice or request
served by facsimile that if the time of despatch is not within
normal business hours on a business day in the country of the
addressee the effective date of such notice or request shall
be deemed to be the next such business day.
Seller's address for notices is:
AIRBUS GIE
Attn. To V. P. Xxxxxxxxx
0 Xxxx-Xxxxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxx
Fax (00) 000 00 00 00
Buyer's address for notices is:
Corporate Fleet Development
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
xxx Xxxxxxxxxxx
Fax (00) 00 0000000
or such other address or such other person as the party
receiving the notice or request may reasonably designate from
time to time.
22.3 WAIVER
The failure of either party to enforce at any time any of the
provisions of this Agreement, or 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 thereof or the right of the other party thereafter to
enforce each and every such provision. The express waiver
(whether made one (1) or several times) 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.
22.4 LAW AND JURISDICTION
22.4.1 This Agreement shall be governed by and construed in
accordance with the laws of England.
22.4.2 Any dispute arising out of or in connection with this
Agreement shall be within the exclusive jurisdiction of the
Courts of England.
22.5 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties do not intend that any term of this Agreement
shall be enforceable solely by virtue of the Contracts (Rights
of Third Parties) Xxx 0000 by any person who is not a party to
this Agreement. Subject only to the terms of Clause 21
(Assignments and transfers) of this Agreement, the parties may
rescind, vary, waive, release, assign, novate or otherwise
dispose of all or any of their respective rights or
obligations under this Agreement without the consent of any
person who is not a party to this Agreement.
22.6 INTERNATIONAL SUPPLY CONTRACT
The Buyer and the Seller recognise that this Agreement is an
international supply contract which has been the subject of
discussion and negotiation, that all its terms and conditions
are fully understood by the parties, and that the
Specification and price of the Aircraft and the other mutual
agreements of the parties set forth herein were arrived at in
consideration of, inter alia, all the provisions hereof
specifically including all waivers, releases and renunciations
by the Buyer set out herein.
The Buyer and the Seller hereby also agree that the United
Nations Convention on Contracts for the International Sale of
Goods will not apply to this transaction.
22.7 SEVERABILITY
In the event that any provision of this Agreement should for
any reason be held ineffective, the remainder of this
Agreement shall remain in full force and effect. To the extent
permitted by applicable law, each party hereto hereby waives
any provision of law which renders any provision of this
Agreement prohibited or unenforceable in any respect.
22.8 ALTERATIONS TO CONTRACT
This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and
supersedes any previous understandings, commitments or
representations whatsoever oral or written in respect thereto.
This Agreement shall not be varied except by an instrument in
writing of date even herewith or subsequent hereto executed by
both parties or by their duly authorised representatives.
22.9 LANGUAGE
All correspondence, documents and any other written matters in
connection with this Agreement shall be in English.
This Agreement has been executed in two (2) original copies
which are in English, and may be executed in counterparts.
22.10 CONFIDENTIALITY
This Agreement including any Exhibits or other documents
related hereto shall be treated by both parties as
confidential and shall not be released in whole or in part to
any third party except as may be required by law, or to
professional advisors for the purpose of implementation
hereof. In particular, each party agrees not to make any press
release concerning the whole or any part of the contents
and/or subject matter hereof or of any future addendum hereto
without the prior consent of the other party hereto.
IN WITNESS WHEREOF this Agreement was entered into the day and year first above
written.
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
Name: _______________________ Name: _______________________
Title: _______________________ Title: _______________________
EXHIBIT A
SPECIFICATION
The A330-200 Standard Specification is contained in a separate folder.
EXHIBIT B
FORM OF
SPECIFICATION CHANGE NOTICE
Exhibit C1
Airframe price formula
1.1 Basic Price
The Airframe Basic Price quoted in Clause 3.1 is subject to
adjustment for changes in economic conditions as measured by
data obtained from the US Department of Labor, Bureau of Labor
Statistics, and in accordance with the provisions hereof.
1.2 Base Period
The Airframe Basic Price has been established in accordance
with the average economic conditions prevailing in December
1999, January 2000, February 2000 and corresponding to a
theoretical delivery in January 2001 as defined by "ECIb" and
"ICb" index values indicated hereafter.
"ECIb" and "ICb" index values indicated hereof shall not be
subject to any revision.
1.3 Indexes
Labor Index : "Employment Cost Index for Workers in Aerospace
manufacturing" (Aircraft manufacturing, standard industrial
classification code SIC 3721, wages and salaries, base month
and year June 1989 = 100), as released by the US Department of
Labor, Bureau of Labor Statistics, on a quarterly basis,
hereinafter referred to as "ECI SIC 3721W".
The quarterly value released for a certain month (March, June,
September and December) shall be the one deemed to apply for
the two preceding months.
Material Index : "Industrial commodities" (hereinafter referred
to as "IC") as published in "Producer Price Indexes" (Table 6.
Producer price indexes and percent changes for commodity
groupings and individual items). (Base Year 1982 = 100).
1.4 Revision Formula
Pn = (Pb + F)(0.75 ECIn/ECIb + 0.25 ICn/ICb)
Where :
Pn : Airframe Basic Price as revised as of the
Delivery Date of the Aircraft
Pb : Airframe Basic Price at economic conditions
December 1999, January 2000, February 2000
averaged (January 2001 delivery conditions)
F : (0.005 x N x Pb)
where N = the calendar year of delivery of
the Aircraft minus 2001
ECIn : the arithmetic average of the latest
published values of the ECI SIC 3721W-Index
available at the Delivery Date of the
Aircraft for the 11th, 12th and 13th month
prior to the month of Aircraft Delivery
ECIb : ECI SIC 3721W-Index for December 1999,
January 2000, February 2000 averaged
(= 145.4)
ICn : the arithmetic average of the latest
published values of the IC-Index available
at the Delivery Date of the Aircraft for the
11th, 12th and 13th month prior to the month
of Aircraft Delivery
ICb : IC-Index for December 1999, January 2000,
February 2000 averaged (= 130.3)
1.5 General Provisions
1.5.1 Roundings
The Labor Index average and the Material Index average shall be
computed to the first decimal. If the next succeeding place is
five (5) or more, the preceding decimal place shall be raised
to the next higher figure.
Each quotient shall be rounded to the nearest ten-thousandth (4
decimals). If the next succeeding place is five (5) or more,
the preceding decimal place shall be raised to the next higher
figure.
The final factor shall be rounded to the nearest ten-thousandth
(4 decimals).
The final price shall be rounded to the nearest whole number
(0.5 or more rounded to 1).
1.5.2 Substitution of Indexes for Airframe Price Revision Formula
If;
(i) the United States Department of Labor substantially
revises the methodology of calculation of the Labor
Index or the Material Index as used in the Airframe
Price Revision Formula, or
(ii) the United States Department of Labor discontinues,
either temporarily or permanently, such Labor Index or
such Material Index, or
(iii) the data samples used to calculate such Labor Index or
such Material Index are substantially changed;
the Seller shall select a substitute index for inclusion in
the Airframe Price Revision Formula (the "Substitute Index").
The Substitute Index shall reflect as closely as possible the
actual variance of the Labor Costs or of the material costs
used in the calculation of the original Labor Index or
Material Index as the case may be.
As a result of the selection of the Substitute Index, the
Seller shall make an appropriate adjustment to the Airframe
Price Revision Formula to combine the successive utilisation
of the original Labor Index or Material Index (as the case may
be) and of the Substitute Index.
1.5.3 Final Index Values
The Index values as defined in Clause 1.4 above shall be
considered final and no further adjustment to the basic prices
as revised at delivery of the Aircraft shall be made after
Aircraft delivery for any subsequent changes in the published
Index values.
Exhibit C part 2
PW formula
1 REFERENCE PRICE OF THE PROPULSION SYSTEMS
The Reference Price of a set of two (2) XXXXX AND XXXXXXX XX
4168A Propulsion Systems is:
US Dollars [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
This Reference Price is subject to adjustment for changes in
economic conditions as measured by data obtained from the US
Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions hereof.
2 REFERENCE PERIOD
The above Reference Price has been established in accordance
with the economic conditions prevailing in December 2000 as
defined, according to XXXXX AND WHITNEY by the HEb, ICb index
values indicated in Clause 4 of this Exhibit C.
3 INDEXES
Labor Index : "Aircraft engines and engine parts" Standard
Industrial Classification 3724 - Average hourly earnings
(hereinafter referred to as "HE" SIC 3724) as published in
"Employment and Earnings" (Establishment Data-Hours and
Earnings not seasonally adjusted Table B-15. Average hours and
earnings of production or nonsupervisory workers on private
nonfarm payrolls by detailed industry).
Material Index : "Industrial Commodities" (hereinafter referred
to as "IC") as published in "PPI Dretailed report" (found in
Table 6. "Producer price indexes and percent changes for
commodity groupings and individual items not seasonnally
adjusted" or such other names that may be from time to time
used for the publication title and/or table). (Base Year 1982 =
100).
4 REVISION FORMULA
Pn = (Pb+F) x [(0.75 x (HEn/HEb)) + (0.25 x (ICn/ICb))]
Where :
Pn : revised Reference Price at Aircraft Delivery
Pb : Reference Price at economic conditions
December 2000
F : (0.005 x N x Pb)
where N = the calendar year of Delivery of
the Aircraft minus 2001
HEn : AHEsic3724-Index for the sixth (6th) month
prior to the month of Aircraft Delivery
HEb : AHEsic3724-Index for December 2000 (=20.33)
ICn : IC-Index for the sixth (6th) month prior to
the month of Aircraft Delivery
ICb : IC-Index for December 2000 (=138.5)
5. GENERAL PROVISIONS
5.1 Roundings
(i) Each quotient, (HEn/Heb) and (ICn/Icb), shall be
calculated to the nearest ten-thousandth (4 decimals).
(ii) The final factor shall be rounded to the nearest
ten-thousandth (4 decimals).
If the next succeeding place is five (5) or more the preceding
decimal place shall be raised to the nearest higher figure.
After final computation Pn shall be rounded to the nearest
whole number (0.5 rounds to 1).
5.2 Final Index Values
The revised Reference Price at the date of Aircraft Delivery
shall be the final price and shall not be subject to any
further adjustments in the indexes.
If no final index values are available for any of the
applicable months, the then published preliminary figures shall
be the basis on which the Revised Reference Price shall be
computed.
5.3 Interruption of Index Publication
If the US Department of Labor substantially revises the
methodology of calculation or discontinues any of the indexes
referred to hereabove, the Seller shall reflect the substitute
for the revised or discontinued index selected by the XXXXX AND
WHITNEY, such substitute index to lead in application to the
same adjustment result, insofar as possible, as
would have been achieved by continuing the use of the original
index as it may have fluctuated had it not been revised or
discontinued.
Appropriate revision of the formula shall be made to accomplish
this result.
5.4 Annulment of Formula
Should the above escalation provisions become null and void by
action of the US Government, the price shall be adjusted due to
increases in the costs of labor and material which have
occurred from the period represented by the applicable
Reference Price Indexes to the sixth (6th) month prior to the
scheduled Aircraft Delivery.
5.5 Limitation
Should the revised Reference Price be lower than the Reference
Price, the final price shall be computed with the Reference
Price.
Exhibit C part 2
PART 2 ROLLS ROYCE REVISION FORMULA
1 REFERENCE PRICE OF THE PROPULSION SYSTEMS
The Reference Price of a set of two (2) ROLLS ROYCE RB 211
TRENT 772B Propulsion Systems is :
US Dollars [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
This Reference Price is subject to adjustment for changes in
economic conditions as measured by data obtained from the US
Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions hereof.
2 REFERENCE PERIOD
The above Reference Price has been established in accordance
with the average economic conditions prevailing in December
1999, January 2000 , February 2000 , as defined, according to
ROLLS ROYCE, by the ECIb, MMPb, EPb index values indicated in
Paragraph 4 of this Exhibit C.
3 INDEXES
Labor Index : "Employment Cost Index for Workers in Aerospace
manufacturing" hereinafter referred to as "ECI SIC 3721W",
quarterly published by the US Department of Labor, Bureau of
Labor Statistics, in "NEWS", and found in :Table 6 , "WAGES
and SALARIES (not seasonally adjusted): Employment Cost
Indexes for Wages and Salaries for private industry workers by
industry and occupational group" ,or such other name that may
be from time to time used for the publication title and/or
table, (Aircraft manufacturing, standard industrial
classification code SIC 3721, base month and year June 1989 =
100.)
The quarterly value released for a certain month (March, June,
September and December) shall be the one deemed to apply for
the two preceding months.
Material Index : "Metals and metal products" Code 10
(hereinafter referred to as "MMP") as published in "PPI
Dretailed report" (found in Table 6. "Producer price indexes
and percent changes for commodity groupings and individual
items not seasonnally 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") as published in "PPI
Dretailed report" (found in Table 6. "Producer price indexes
and percent changes for commodity groupings and individual
items not seasonnally adjusted " or such other names that may
be from time to time used for the publication title and/or
table) . (Base Year 1982 = 100).
4 REVISION FORMULA
Pn=(Pb + F) x (0.60x ECIn/ECIb + 0.30x MMPn/MMPb + 0.10x
EPn/EPb)
where :
F : (0.005 x N x Pb) where N is the calendar
year of Aircraft delivery minus 2001
Pn : Revised Reference Price of a set of two
Propulsion Systems at Aircraft delivery
Pb : Reference Price at averaged economic
conditions December 1999, January 2000,
February 2000.
ECIn : ECI3721W Index for 13th, 12th, 11th months
averaged prior to the month of Aircraft
delivery
ECIb : ECI3721W Index for December 1999, January
2000, February 2000(=145.40)
MMPn : MMP-Index for the 13th, 12th, 11th months
averaged prior to the month of Aircraft
delivery
MMPb : MMP-Index for December 1999, January 2000,
February 2000(=128.13)
EPn : EP-Index for the 13th, 12th, 11th months
averaged prior to the month of Aircraft
delivery
EPb : EP-Index for December 1999, January 2000,
February 2000(=89.50)
5 GENERAL PROVISIONS
5.1 Roundings
The Labor and Material Index averages shall be computed to the
second decimal place.
Each factor (0.60x ECIn/ECIb, 0.30XMMPn/MMPb, 0.10XEPn/EPb)
shall be calculated to the nearest ten-thousandth (4
decimals).
If the next succeeding place is five (5) or more the preceding
decimal shall be raised to the next higher figure.
After final computation Pn shall be rounded to the nearest
whole number (0.5 or more rounded to 1).
5.2 Final Index Values
The revised Reference Price at the date of Aircraft delivery
shall not be subject to any further adjustments in the
indexes.
5.3 Interruption of Index Publication
If the US Department of Labor substantially revises the
methodology of calculation or discontinues any of these
indexes referred to hereabove, the Seller shall reflect the
substitute for the revised or discontinued index selected by
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 shall be made to
accomplish this result.
5.4 Annulment of Formula
Should the above escalation provisions become null and void by
action of the British Government, the Price shall be adjusted
due to increases in the costs of labor, material and fuel
which have occurred from the period represented by the
applicable Reference Price Indexes to the twelfth (12th) month
prior to the scheduled month of Aircraft delivery.
Exhibit C part 2
PART 2 GENERAL ELECTRIC REVISION FORMULA
1 REFERENCE PRICE OF THE ENGINES
The Reference Price of GENERAL ELECTRIC CF6-80E1A3 Propulsion
Systems is:
US Dollars [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
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 C.
2 REFERENCE PERIOD
The above Reference Price has been established in accordance
with the economical conditions prevailing for a theoretical
delivery in January 2002 as defined by GENERAL ELECTRIC by the
Reference Composite Price Index (CPIb) of 148.84
3 INDEXES
Labor Index : "Employment Cost Index for Workers in Aerospace
manufacturing" hereinafter referred to as "ECI SIC 3721W",
quarterly published by the US Department of Labor, Bureau of
Labor Statistics, in "NEWS", and found in Table 6 , "WAGES and
SALARIES (not seasonally adjusted) : Employment Cost Indexes
for Wages and Salaries for private industry workers by
industry and occupational group" ,or such other name that may
be from time to time used for the publication title and/or
table, (Aircraft manufacturing, standard industrial
classification code SIC 3721, base month and year June 1989 =
100.) The quarterly value released for a certain month (March,
June, September and December) shall be the one deemed to apply
for the two preceding months.
Material Index : "Industrial Commodities" (hereinafter
referred to as "IC") as published in "PPI Dretailed report"
(found in Table 6. "Producer price indexes and percent changes
for commodity groupings and individual items not seasonnally
adjusted " or such other names that may be from time to time
used for the publication title and/or table) . (Base Year 1982
= 100).
4 REVISION FORMULA
Pn : ( Pb +F) x CPIn/148.84
where :
Pn : revised Reference Price at Aircraft
delivery.
Pb : Reference Price at delivery conditions
January 2002
F : (0.005 x N x Pb)
where N = the calendar year of delivery of
the Aircraft minus 2002
CPIn : the Composite Price Index (CPI) applicable
for the month of aircraft delivery. This
Composite Price Index is composed as
follows :
CPIn= 0.65 x ECIn + 0.35 x ICn
where :
ECIn : The arithmetic average of the
ECIsic3721W-Index available at the delivery
date of the Aircraft
for the 11th,12th and 13th month prior to
the month of Aircraft delivery.
ICn : The arithmetic average of the IC-Index
available at the delivery date of the
Aircraft for the 11th, 12th and 13th month
prior to the month of Aircraft delivery
5 GENERAL PROVISIONS
5.1 Roundings
(i) The Material index average (ICn) shall be
rounded to the nearest second decimal place
and the labor index average (ECIn) shall be
rounded to the nearest first decimal place.
(ii) CPIn shall be rounded to the nearest second
decimal place.
(iii) The final factor (CPIn/148.84) shall be
rounded to the nearest third decimal place.
If the next succeeding place is five (5) or more, the
preceding decimal place shall be raised to the next higher
figure.
After final computation Pn shall be rounded to the nearest
whole number (0.5 rounds to 1).
5.2 Final Index Values
The revised Reference Price at the date of Aircraft delivery
shall not be subject to any further adjustments in the
indexes.
5.3 Interruption of Index Publication
If the US Department of Labor substantially revises the
methodology of calculation or discontinues any to these
indexes referred to hereabove, the Seller shall 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 shall be made to
accomplish this result.
5.4 Annulment of Formula
Should the above escalation provisions become null and void by
action of the US Government, the Reference Price shall be
adjusted due to increases in the costs of labor, and material
which have occurred from the period represented by the
applicable Reference Composite Price Index to the twelfth
(12th) month prior to the scheduled month of Aircraft
delivery.
5.5 Limitations
SHOULD THE RATIO CPIN/148.84 BE LOWER THAN 1.000 , PN WILL BE
EQUAL TO PB+F
Exhibit D
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of the A[ ] purchase agreement dated [ ] and
made between [Airline] and AIRBUS G.I.E., as amended (the "PURCHASE AGREEMENT"),
the acceptance tests relating to the A[ ] aircraft, Manufacturer's Serial
Number: [ ], Registration Number: [ ] (the "AIRCRAFT"), have taken place at
[Airbus France S.A.S] or [Airbus Deutschland GmbH] Works on the [ ] day of
[ ].
In view of said tests having been carried out with satisfactory results,
[Airline] hereby approves the Aircraft as being in conformity with the
provisions of the Purchase Agreement.
Said acceptance does not impair the rights that may be derived from the
warranties relating to the Aircraft set forth in the Purchase Agreement.
Any right at law or otherwise to revoke this acceptance of the Aircraft is
hereby waived.
The [ ] day of [ ]
[Airline]
By:
Its:
Exhibit E
XXXX OF SALE
Know all men by these presents that Airbus G.I.E. ("AIRBUS"), a "Groupement
d'Interet Economique" created pursuant to the Ordonnance N(degree) 67-821 of the
23rd September 1967 of the French Republic and whose address is 1 rond-point
Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx Xxxxx, 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 G.I.E. [ ]
MODEL: [ ] MODEL: [ ]
MANUFACTURER'S SERIAL NUMBERS: LH : [ ]
SERIAL NUMBER: [ ] RH : [ ]
REGISTRATION LETTERS: [ ]
The Airframe, Engines and Parts are hereafter together referred to as the
aircraft (the "AIRCRAFT").
AIRBUS does this [ ] day of [ ] sell, transfer and deliver all of its above
described rights, title and interest to the Aircraft to the following company
and to its successors and assigns forever, said Aircraft to be the property
thereof:
[Name of Buyer]
AIRBUS hereby warrants to the Buyer, its successors and assigns that it has on
the date hereof good and lawful right to sell, deliver and transfer title to the
Aircraft to the Buyer and that there is hereby conveyed to the Buyer on the date
hereof good, legal and valid title to the Aircraft, free and clear of all liens,
claims, charges, encumbrances and rights of others.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by
its duly authorized representative this ______ day of [ ]
AIRBUS "Groupement d'Interet Economique"
By:
Title:
Signature
EXHIBIT F
SERVICE LIFE POLICY
ITEMS OF PRIMARY STRUCTURE
SELLER SERVICE LIFE POLICY
1 The Items covered by the Service Life Policy pursuant to
Clause 12.2 are those Seller Items of primary and auxiliary
structure described hereunder.
2 WINGS - CENTER AND OUTER WING BOX (LEFT AND RIGHT)
2.1 WING STRUCTURE
2.1.1 Spars
2.1.2 Ribs and stringers inside the wing box
2.1.3 Upper and lower wing skin panels of the wing box
2.2 FITTINGS
2.2.1 Support structure and attachment fittings for the flap
structure
2.2.2 Support structure and attachment fitting for the engine pylons
2.2.3 Support structure and attachment fitting for the main landing
gear
2.2.4 Support structure and attachment fitting for the center wing
box
2.3 AUXILIARY SUPPORT STRUCTURE
2.3.1 For the slats:
2.3.1.1 Ribs supporting the track rollers on wing box structure
2.3.1.2 Ribs supporting the actuators on wing box structure
2.3.2 For the ailerons:
2.3.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.2.2 Actuator fittings on wing box rear spar or shroud box
2.3.3 For airbrakes, spoilers, lift dumpers:
2.3.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.3.2 Actuator fittings on wing box rear spar or shroud box
2.4 PYLON
2.4.1 For the Pylon Main Structural Box
2.4.1.1 Spars
2.4.1.2 Ribs
2.4.1.3 Skin, doublers and stiffeners
2.4.1.4 Support structure and attachment fitting for engine supports
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 support structure and attachment fitting
3.2.2 Support structure and attachment fittings for the vertical and
horizontal stabilizers
3.2.3 Support structure and attachment fitting for the APU
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 Support structure and attachment fitting 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 Support structure and attachment fitting to fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5 EXCLUSIONS
Bearing and roller assemblies, bearing surfaces, bushings,
fittings other than those listed above, access and inspection
doors, including manhole doors, latching mechanisms, all
system components, commercial interior parts, insulation and
related installation and connecting devices are excluded from
this Seller Service Life Policy.
EXHIBIT G
TECHNICAL DATA INDEX
TECHNICAL DATA INDEX
The following index identifies the Technical Data provided in support of the
Aircraft. The explanation of the table is as follows:
NOMENCLATURE Self-explanatory.
ABBREVIATED DESIGNATION (Abbr) Self-explanatory.
FORM
OL-A ON-LINE through Airbus On-Line Services: Advanced Consultation
and Navigation System
OL-P ON-LINE through Airbus On-Line Services: in PDF -- Portable
Document Format
CD-A CD-ROM: Advanced Consultation and Navigation System
CD-P CD-ROM: in PDF -- Portable Document Format
D DISKETTE (Floppy Disk)
DD DIGITAL DATA. Stands generally for SGML format on CD-ROM.
F MICROFILM. Refers to 16mm roll film in 3M type cartridges.
FC MICROFILM. Refers to 70 mm film on microfiches.
P1 PRINTED ONE SIDE. Refers to manuals in paper with print on one
(1) side of the sheets only.
P2 PRINTED BOTH SIDES. Refers to manuals with print on both sides
of the sheets.
TYPE C CUSTOMIZED. Refers to manuals that are applicable to an
individual Airbus customer/operator fleet or aircraft.
G GENERIC. Refers to manuals that are for all aircraft
types/models/series.
E ENVELOPE. Refers to manuals that are applicable to a whole
group of Airbus customers for a specific aircraft
type/model/series.
P PRELIMINARY. Refers to preliminary data or manuals which may
consist of either:
- one-time issue not maintained by revision service, or
- preliminary issues maintained by revision service until
final manual or data delivery, or
- supply of best available data under final format with
progressive completion through revision service.
ATA Manuals established essentially in accordance with ATA
specification 2200 (iSpec 2200). Information Standards for
Aviation Maintenance.
QUANTITY (Qty) Self-explanatory.
DELIVERY (Deliv) Delivery refers to scheduled delivery dates and is
expressed in either the number of corresponding days prior to
first Aircraft delivery, or nil (0) corresponding to the first
delivery day.
The number of days indicated shall be rounded up to the next
regular revision release date.
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
OPERATIONAL MANUALS AND DATA
---------------------------- ---- ---- ---- --- --- ----- --------
Flight Crew Operating Manual
Flight Manual
Master Minimum Equipment List
Quick Reference Handbook
Trim Sheet
Weight and Balance Manual
Performance Engineer's Programs
Performance Programs Manual
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
OPERATIONAL MANUALS AND DATA
---------------------------- ---- ---- ---- --- --- ----- --------
Aircraft Maintenance Manual
Aircraft Schematics Manual
Aircraft Wiring Lists
Aircraft Wiring Manual
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
OPERATIONAL MANUALS AND DATA
---------------------------- ---- ---- ---- --- --- ----- --------
Component Location Manual
Consumable Material List
Duct Repair Manual
Electrical Load Analysis
Electrical Standard Practices Manual
Electrical Standard Practices booklet
Fuel Pipe Repair Manual
Illustrated Parts Catalog (Airframe)/Additional
Cross Reference Table
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
Note: All above mentioned manuals except ESP will be in addition available on line (OL-P)
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
MAINTENANCE AND ASSOCIATED MANUALS
---------------------------------- ---- ---- ---- --- --- ----- --------
Illustrated Parts Catalog (Power Plant)
Maintenance Facility Planning
Maintenance Planning Document
Maintenance Review Board
Support Equipment Summary
Tool and Equipment Bulletins
Tool and Equipment Drawings
Tool and Equipment Index
Illustrated Tool and Equipment Manual
Technical Publications Combined Index
Trouble Shooting Manual
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Note: All above mentioned manuals except MRB will be in addition available on
line (OL-P)
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
STRUCTURAL MANUALS
---------------------------------- ---- ---- ---- --- --- ----- --------
Nondestructive Testing Manual
Nacelle Structural Repair Manual
Structural Repair Manual
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
Note: All above mentioned manuals will be in addition available on line (OL-P)
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
OVERHAUL DATA
---------------------------------- ---- ---- ---- --- --- ----- --------
Component Documentation Status
Component Evolution List
Component Maintenance Manual --
Manufacturer
Component Maintenance Manual -- Vendor
Cable Fabrication Manual
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
Note: All above mentioned manuals except CDS and CMMV will be in addition available on line (OL-P)
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
ENGINEERING DOCUMENTS
---------------------------------- ---- ---- ---- --- --- ----- --------
Installation and Assembly Drawings
Process and Material Specification
Parts Usage (Effectively)
Schedule (Drawing Nomenclature)
Standards Manual
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Note: PMS and SM will be in addition available on line (OL-P)
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
MISCELLANEOUS PUBLICATIONS
---------------------------------- ---- ---- ---- --- --- ----- --------
Airplane Characteristics for Airport
Planning ATA Breakdown Index
CADETS (Technical Publications Training)
Aircraft Recovery Manual
Crash Crew Chart
Cargo Loading System Manual
List of Applicable Publications
List of Radioactive and Hazardous Elements
Livestock Transportation Manual
Service Bulletins
Service Information Letters
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
Note: all above mentioned manuals except CCC and LAP will be in addition available online (OL-P)
NOMENCLATURE ABBR FORM TYPE ATA QTY DELIV COMMENTS
MISCELLANEOUS PUBLICATIONS
---------------------------------- ---- ---- ---- --- --- ----- --------
Supplier Product Support Agreements 2000
Transportability Manual
Vendor Information Manual
Vendor Information Manual GSE
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Note: all above mentioned manuals will be in addition available on line (OL-P)
Exhibit H
EXHIBIT "H"
MATERIEL
SUPPLY AND SERVICES
1 GENERAL
1.1 This Exhibit defines the terms and conditions for the materiel
support services offered by the Seller to the Buyer in the
following areas:
- Initial provisioning of data and materiel
- Replenishment of materiel
- Lease of certain Seller Parts
1.1.1 Capitalized terms used herein and not otherwise defined in this
Exhibit "H" shall have the same meanings assigned thereto in the
Agreement.
1.1.2 References made to Clauses or sub-Clauses shall refer to Clauses
or sub-Clauses of this Exhibit "H" unless otherwise specified.
1.2 SCOPE OF MATERIEL SUPPORT
Materiel is classified into the following categories (hereinafter
referred to as "MATERIEL"):
(i) Seller Parts (Seller's proprietary Materiel bearing
an official part number of the Seller or Materiel for
which the Seller has the exclusive sales rights);
(ii) Supplier Parts classified as Repairable Line
Maintenance Parts in accordance with SPEC 2000;
(iii) Supplier Parts classified as Expendable Line
Maintenance Parts in accordance with SPEC 2000;
(iv) Ground Support Equipment and Specific (To Type)
Tools.
1.2.1 Certain Seller Parts listed in Appendix A of Clause 6 are
available for lease by the Seller to the Buyer.
1.2.2 The Materiel support to be provided hereunder by the Seller
covers items classified as Materiel in sub-Clauses 1.2 (i) thru
(iv) both for initial provisioning as described in Clause 2
("INITIAL PROVISIONING") and for replenishment as described in
Clause 3.
Repairable Line Maintenance Parts as specified in sub-Clauses 1.2
(i) and 1.2 (ii) above having less than [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
flight-hours are considered as new for invoicing purposes. In
such a case, the conditions and flight hours of these parts will
be indicated and the acceptance of such parts shall be mutually
agreed upon. Such acceptance may require the Seller to provide
the Buyer on request with additional data related to the
condition of the parts.
1.2.3 Propulsion Systems, nacelles, quick engine change kit and thrust
reverser accessories and parts, including associated parts, are
not covered under this Exhibit "H" and shall be subject to direct
agreements between the Buyer and the relevant Propulsion System
Manufacturer. The Seller shall use its reasonable efforts to
assist the Buyer in case of any difficulties with availability of
Propulsion Systems and associated spare parts.
1.2.4 During a period commencing on the date hereof and continuing for
as long as at least five (5) aircraft of (each of) the model(s)
covered under this Agreement are operated in commercial air
transport service ("TERM"), the Seller shall maintain or have
maintained such stock of Seller Parts as is deemed reasonable by
the Seller and shall furnish at reasonable prices Seller Parts
adequate to meet the Buyer's needs for maintenance of the
Aircraft.
The Seller shall ensure that a similar service is available from
all Suppliers of parts which are originally installed on the
Aircraft and not manufactured by the Seller.
1.3 MATERIEL SUPPORT CENTRE AND CENTRAL STORE
1.3.1 The Seller has established its materiel support centre in
HAMBURG, FEDERAL REPUBLIC OF GERMANY ("MATERIEL SUPPORT Centre")
and shall maintain or cause to be maintained during the Term a
central store of Seller Parts.
1.3.2 The Materiel Support Centre is operated twenty-four (24)
hours/day and seven (7) days/week.
1.3.3 On a case by case basis, the Seller reserves the right to effect
deliveries from distribution centres other than Materiel Support
Centre or from any designated production or Suppliers'
facilities.
For efficient and convenient deliveries, the Seller and its
affiliate companies operate regional satellite stores.
1.4 AGREEMENTS OF THE BUYER
1.4.1 The Buyer agrees to purchase from the Seller the Seller Parts
required for the Buyer's own needs during the Term, provided that
the provisions of this Clause 1.4 shall not in any way prevent
the Buyer from resorting to the Seller Parts stocks of other
operators using the same Aircraft or from purchasing Seller Parts
from said operators or from distributors, provided said Seller
Parts have been designed and manufactured by the Seller.
1.4.2 The Buyer may manufacture or have manufactured for its own use
without paying any license fee to the Seller, or may purchase
from other sources, parts equivalent to Seller Parts :
1.4.2.1 after expiration of the Term if at such time the Seller Parts are
out of stock,
1.4.2.2 at any time, to the extent Seller Parts are needed to effect
aircraft on ground ("AOG") repairs upon any Aircraft delivered
under the Agreement and are not available from the Seller within
a lead time shorter than or equal to the time in which the Buyer
can procure such Seller Parts, and provided the Buyer shall not
sell such Seller Parts,
1.4.2.3 in the event that the Seller fails to fulfil its obligations with
respect to any Seller Parts pursuant to Clause 1.2 within a
reasonable time after written notice thereof from the Buyer,
1.4.2.4 in those instances where a Seller Part is identified as "Local
Manufacture" in the Illustrated Parts Catalog (IPC).
1.4.3 The rights granted to the Buyer in Clause 1.4.2 shall not in any
way be construed as a license, nor shall they in any way obligate
the Buyer to the payment of any license fee or royalty, nor shall
they in any way be construed to affect the rights of third
parties.
2 INITIAL PROVISIONING
2.1 INITIAL PROVISIONING PERIOD
The INITIAL PROVISIONING PERIOD is defined as the period up to
and expiring on the ninetieth (90th) day after delivery of the
last Aircraft subject to firm order under the Agreement.
2.2 PRE-PROVISIONING MEETING
2.2.1 The Seller shall organize a pre-provisioning meeting
("PRE-PROVISIONING MEETING") at its Materiel Support Centre for
the purpose of formulating an acceptable schedule and working
procedure to accomplish the initial provisioning of Materiel.
2.2.2 The date of the meeting shall be mutually agreed upon, allowing a
minimum preparation time of eight (8) weeks for the Initial
Provisioning Conference referred to in Clause 2.4 below.
2.3 INITIAL PROVISIONING TRAINING
Upon the request of the Buyer, the Seller shall provide free of
charge Initial Provisioning training for a reasonable number of
the Buyer's provisioning and purchasing personnel. The following
areas shall be covered:
(i) The Seller during the Pre-Provisioning Meeting shall
familiarize the Buyer with the provisioning
documents.
(ii) The technical function as well as the necessary
technical and commercial Initial Provisioning Data
shall be explained during the Initial Provisioning
Conference.
(iii) A familiarization with the Seller's purchase order
administration system shall be conducted during the
Initial Provisioning Conference.
2.4 INITIAL PROVISIONING CONFERENCE
The Seller shall organize an Initial Provisioning conference
("INITIAL PROVISIONING CONFERENCE") at the Materiel Support
Centre, including participation of major Suppliers as agreed upon
during the Pre-Provisioning Meeting.
Such conference shall not take place earlier than eight (8) weeks
after Manufacturer Serial Number allocation, Buyer Furnished
Equipment selection or Customer Definition Freeze, whichever is
the latest.
2.5 SELLER-SUPPLIED DATA
The Seller shall prepare and supply to the Buyer the following
data.
2.5.1 INITIAL PROVISIONING DATA
Initial Provisioning data elements generally in accordance with
SPEC 2000, Chapter 1, ("INITIAL PROVISIONING DATA") shall be
supplied by the Seller to the Buyer in a form, format and a
time-scale to be mutually agreed upon during the Pre-Provisioning
Meeting.
2.5.1.1 Revision service shall be provided every ninety (90) days, up to
the end of the Initial Provisioning Period.
2.5.1.2 In any event, the Seller shall ensure that Initial Provisioning
Data is released to the Buyer in due time to give the Buyer
sufficient time to perform any necessary evaluation and allow the
on-time delivery of any ordered Materiel.
2.5.2 SUPPLEMENTARY DATA
The Seller shall provide the Buyer with supplementary data to the
Initial Provisioning Data, including Local Manufacture Tables
(X-File) and Ground Support Equipment and Specific (To-Type)
Tools (W-File) in accordance with SPEC 2000, Chapter 1.
2.5.3 DATA FOR STANDARD HARDWARE
The Initial Provisioning Data provided to the Buyer shall include
data for hardware and standard materiel.
2.6 SUPPLIER-SUPPLIED DATA
2.6.1 GENERAL
The Seller shall obtain from Suppliers agreements to prepare and
issue for their own products as per Clause 1.2 (ii)
repair/overhaul Initial Provisioning Data in the English
language, for those components for which the Buyer has elected to
receive data.
Said data (initial issue and revisions) shall be transmitted to
the Buyer through the Suppliers and/or the Seller.
In any event, the Seller shall exert its reasonable efforts to
supply such Data to the Buyer in due time to give the Buyer
sufficient time to perform any necessary evaluation and allow
on-time deliveries.
2.6.2 INITIAL PROVISIONING DATA
Initial Provisioning Data elements for Supplier Parts as per
sub-Clause 1.2 (ii) generally in accordance with SPEC 2000,
Chapter 1, shall be furnished as mutually agreed upon during a
Pre-Provisioning Meeting with revision service assured up to the
end of the Initial Provisioning period.
2.7 INITIAL PROVISIONING DATA COMPLIANCE
2.7.1 Initial Provisioning Data generated by the Seller and supplied to
the Buyer shall comply with the latest configuration of the
Aircraft to which such data relate as known three (3) months
before the date of issue. Said data shall enable the Buyer to
order Materiel conforming to its Aircraft as required for
maintenance and overhaul.
This provision shall not cover:
- Buyer modifications not known to the Seller,
- modifications not agreed to by the Seller.
2.8 COMMERCIAL OFFER
2.8.1 At the end of the Initial Provisioning Conference, the Seller
shall, at the Buyer's request, submit a commercial offer for all
Materiel as defined in Clauses 1.2 (i) thru 1.2 (iv) mutually
agreed as being Initial Provisioning based on the Seller's sales
prices valid at the time of finalization of the Initial
Provisioning Conference. This commercial offer shall be valid for
a period to be mutually agreed upon, irrespective of any price
changes for Seller Parts during this period, except for
significant error and/or price alterations due to part number
changes and/or Supplier price changes.
2.8.2 During the Initial Provisioning Period the Seller shall supply
Materiel, as defined in Clause 1.2 and ordered from the Seller,
which shall be in conformity with the configuration standard of
the concerned Aircraft and with the Initial Provisioning Data
transmitted by the Seller.
2.8.3 The Seller shall in addition use its reasonable efforts to cause
Suppliers to provide a similar service for their items.
2.9 DELIVERY OF INITIAL PROVISIONING MATERIEL
2.9.1 In order to support the operation of the Aircraft, the Seller
shall deliver Materiel ordered during the Initial Provisioning
Period against the Buyer's orders and according to a mutually
agreed schedule. Provided the Buyer's orders have been placed
within [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] after receipt of the Seller's
provisioning data and not later than [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
before delivery of the corresponding Aircraft, one hundred
percent (100 %) of the ordered quantity of each item, including
line station items, shall be delivered [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
after delivery of the last Aircraft. If said one hundred percent
(100 %) cannot be accomplished, the Seller shall have such items
available at its facilities for Seller Parts as per sub-Clause
1.2 (i) or at its Suppliers' facilities for parts as per
sub-Clauses 1.2 (ii) thru 1.2 (iv) for immediate supply in case
of an AOG.
2.9.2 The above agreed delivery schedule applies only to that portion
of the quantity ordered that is recommended for the number of
Aircraft operated during the twelve (12) months that follow first
Aircraft delivery.
2.9.3 The Buyer may, subject to the Seller's agreement, cancel or
modify Initial Provisioning orders placed with the Seller, with
no cancellation charge, not later than the quoted lead-time
before scheduled delivery of said Materiel.
2.9.4 In the event of the Buyer canceling or modifying (without any
liability of the Seller for the cancellation or modification) any
orders for Materiel outside the time limits defined in Clause
2.9.3, the Buyer shall reimburse the Seller for any costs
incurred in connection therewith.
2.9.5 All transportation costs for the return of Materiel under this
Clause 2, including any insurance, customs and duties applicable
or other related expenditures, shall be borne by the Buyer.
2.10 INITIAL PROVISIONING DATA FOR EXERCISED OPTIONS
2.10.1 All Aircraft for which the Buyer exercises its option shall be
included into the revision of the provisioning data that is
issued after execution of the relevant amendment to the Agreement
if such revision is not scheduled to be issued within four (4)
weeks from the date of execution. If the execution date does not
allow four (4) weeks preparation time for the Seller, the
concerned Aircraft shall be included in the subsequent revision
as may be mutually agreed upon.
2.10.2 The Seller shall, from the date of execution of the relevant
amendment to the Agreement until three (3) months after delivery
of each Aircraft, submit to the Buyer details of particular
Supplier components being installed on each Aircraft, with
recommendations regarding order quantity. A list of such
components shall be supplied at the time of the provisioning data
revision as specified above.
2.10.3 The data concerning Materiel shall at the time of each Aircraft
delivery at least cover such Aircraft's technical configuration
as it existed six (6) months prior to Aircraft delivery and shall
be updated to reflect the final status of the concerned Aircraft
once manufactured. Such update shall be included in the data
revisions issued three (3) months after delivery of such
Aircraft.
3 REPLENISHMENT AND DELIVERY
3.1 GENERAL
Buyer's purchase orders are administered in accordance with SPEC
2000, Chapter 3.
For the purpose of clarification it is expressly stated that the
provisions of Clause 3.2 do not apply to Initial Provisioning
Data and Materiel as described in Clause 2.
3.2 LEAD TIMES
In general, lead times are in accordance with the provisions of
the "World Airlines and Suppliers' Guide" (Latest Edition).
3.2.1 Seller Parts as per sub-Clause 1.2 (i) listed in the Seller's
Spare Parts Price List can be dispatched within the lead times
defined in the Spare Parts Price List.
Lead times for Seller Parts, which are not published in the
Seller's Spare Parts Price List, are quoted upon request.
3.2.2 Materiel of sub-Clauses 1.2 (ii) thru 1.2 (iv) can be dispatched
within the Supplier's lead-time augmented by the Seller's own
order and delivery processing time.
3.2.3 EXPEDITE SERVICE
The Seller shall provide a twenty-four (24) hours-a-day, seven
(7) days-a-week expedite service to provide for the supply of the
relevant Seller Parts available in the Seller's stock, workshops
and assembly line including long lead time spare parts, to the
international airport nearest to the location of such part
("EXPEDITE SERVICE").
3.2.3.1 The Expedite Service is operated in accordance with the "World
Airlines and Suppliers' Guide", and the Seller shall notify the
Buyer of the action taken to satisfy the expedite within:
- four (4) hours after receipt of an AOG Order,
- twenty-four (24) hours after receipt of a Critical Order
(imminent AOG or work stoppage),
- seven (7) days after receipt of an Expedite Order from
the Buyer.
3.2.3.2 The Seller shall deliver Seller Parts requested on an Expedite
basis against normal orders placed by the Buyer, or upon
telephone or telex requests by the Buyer's representatives. Such
telephone or telex requests shall be confirmed by subsequent
Buyer's orders for such Seller Parts within a reasonable time.
3.3 DELIVERY STATUS
The Seller shall report to the Buyer the status of supplies
against orders on a monthly basis.
3.4 EXCUSABLE DELAY
Clause 10.1 of the Agreement shall apply to the Materiel support.
3.5 SHORTAGES, OVERSHIPMENTS, NON-CONFORMITY IN ORDERS
3.5.1 The Buyer shall immediately and not later than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] after receipt of Materiel delivered pursuant to a
purchase order advise the Seller:
a) of any alleged shortages or overshipments with respect to
such order,
b) of all non-conformities to specification of parts in such
order subjected to inspections by the Buyer.
In the event of the Buyer not having advised the Seller of any
such alleged shortages, overshipments or non-conformity within
the above defined period, the Buyer shall be deemed to have
accepted the deliveries.
3.5.2 In the event of the Buyer reporting overshipments or
non-conformity to the specifications within the period defined in
Clause 3.5.1 the Seller shall, if the Seller accepts such
overshipment or non-conformity, either replace the concerned
Materiel or credit the Buyer for the returned Materiel. In such
case, transportation costs shall be borne by the Seller.
The Buyer shall endeavor to minimize such costs.
3.6 PACKAGING
All Materiel shall be packaged in accordance with ATA 300
Specification, Category III for consumable/expendable materiel
and Category II for rotables. Category I containers shall be used
if requested by the Buyer and the difference between Category I
and Category II packaging costs shall be paid by the Buyer
together with payment for the respective Materiel.
3.7 CESSATION OF DELIVERIES
The Seller reserves the right to stop or otherwise suspend
deliveries if the Buyer fails to meet its obligations defined in
Clauses 4.2 thru 4.4 after reasonable notification to the Buyer.
4 COMMERCIAL CONDITIONS
4.1. PRICE
4.1.1 The Materiel prices shall be :
- Free Carrier (FCA) the Materiel Support Centre for
deliveries from the Materiel Support Centre.
- Free Carrier (FCA) place specified by the Seller for
deliveries from other Seller or Supplier facilities as the
term Free Carrier (FCA) is defined by the publication
N(Degree) 560 of the International Chamber of Commerce
published in January 2000.
4.1.2 Prices shall be the Seller's sales prices in effect on the date
of receipt of the order (subject to reasonable quantities and
delivery time) and shall be expressed in US-Dollars.
4.1.3 Prices of Seller Parts shall be in accordance with the current
Seller's Spare Parts Price List. Prices shall be firm for each
calendar year. The Seller, however, reserves the right to revise
the prices of said parts during the course of the calendar year
in the following cases:
- significant revision in manufacturing costs,
- significant revision in manufacturer's purchase price of
parts or materiels (including significant variation of
exchange rates),
- significant error in estimation or expression of any price.
The Seller shall issue a revised Spare Parts Price List at least
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] before implementation to the Buyer.
4.1.4 Prices of Materiel as defined in sub-Clauses 1.2 (ii) thru 1.2
(iv) shall be the valid list prices of the Supplier augmented by
the Seller's handling charge. The percentage of the handling
charge shall vary with the Materiel's value and shall be
determined item by item in accordance with Attachment A to this
Exhibit "H" (handling fee curve).
4.1.5 The Seller warrants that, should the Buyer purchase one hundred
percent (100 %) of the recommended Initial Provisioning package
of the Materiel as defined in sub-Clauses 1.2 (ii) thru 1.2 (iv)
through the Seller, the handling charge applicable to the
relevant Materiel, which shall not exceed [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
This average handling charge shall apply when all orders are
received by the Seller no later than [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
before first Aircraft delivery.
4.2 PAYMENT PROCEDURES AND CONDITIONS
4.2.1 Payment shall be made in immediately available funds in the
quoted currency. In case of payment in any other free convertible
currency, the exchange rate valid on the day of actual money
transfer shall be applied for conversion.
4.2.2 Payment shall be made by the Buyer to the Seller within
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] from date of the invoice to the effect
that the value date of the credit to the Seller's account of the
payment falls within this [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] period.
4.2.3 The Buyer shall make all payments hereunder to the Seller's
account with:
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
or as otherwise directed by the Seller.
4.2.4.1 All payments due to the Seller hereunder shall be made in full
without set-off, counterclaim, deduction or withholding of any
kind. Consequently, the Buyer shall procure that the sums
received by the Seller under this Exhibit "H" shall be equal to
the full amounts expressed to be due to the Seller hereunder,
without deduction or withholding on account of and free from any
and all taxes, levies, imposts, dues or charges of whatever
nature except that if the Buyer is compelled by law to make any
such deduction or withholding the Buyer shall pay such additional
amounts as may be necessary in order that the net amount received
by the Seller after such deduction or withholding shall equal the
amounts which would have been received in the absence of such
deduction or withholding.
4.2.4.2 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
4.2.5 If any payment due to the Seller is not received in accordance
with the timescale provided in Clause 4.2.2, without prejudice to
the Seller's other rights under this Exhibit "H", the Seller
shall be entitled to interest for late payment calculated on the
amount due from and including the due date of payment up to and
including the date when the payment is received by the Seller at
a rate equal to the London Interbank Offered Rate (LIBOR) for
twelve (12) months deposits in US Dollars (as published in the
Financial Times on the due date) plus [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] per
year (part year to be prorated).
4.3 CREDIT ASSURANCE
The Seller and the Buyer agree that the Seller has the right to
request and the Buyer shall upon such request provide the Seller
with sufficient financial means in due time in order to assure
the Seller of full payment of the Buyers' current and/or expected
payment obligations.
4.3.1 The Seller's right to request credit assurance from the Buyer
shall be limited to cases [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
4.3.2 The Seller shall accept the following financial means as credit
assurance:
4.3.2.1 Irrevocable and confirmed letter of credit, raised by banks of
international standing and reputation. The conditions of such
letter of credit shall be pertinent to Aircraft support
activities and shall be set forth by the Seller.
4.3.2.2 Bank guarantee raised by banks of international standing and
reputation. The conditions of such bank guarantee shall be
mutually agreed upon prior to acceptance by the Seller.
4.3.2.3 Stand-by letter of credit raised by banks of international
standing and reputation. The conditions of such letter of credit
shall be mutually agreed upon prior to acceptance by the Seller.
4.4 TITLE
Title to any Materiel purchased under this Exhibit "H" remains
with the Seller until full payment of the invoices and any
interest thereon has been received by the Seller.
The Buyer shall undertake that Materiel, title to which has not
passed to the Buyer, shall be kept free from any debenture or
mortgage or any similar charge or claim in favor of any third
party.
4.5 BUY-BACK
4.5.1 BUY-BACK OF OBSOLETE MATERIEL
The Seller agrees to buy back unused Seller Parts which may
become obsolete before delivery of the first Aircraft to the
Buyer as a result of mandatory modifications required by the
Buyer's or the Seller's Aviation Authorities, or as a result of a
Supplier or the Seller development changes subject to the
following:
4.5.1.1 The Seller Parts involved shall be those, which the Buyer is
directed by the Seller to scrap or dispose of and which cannot be
reworked or repaired to satisfy the revised standard.
4.5.1.2 The Seller shall credit to the Buyer the purchase price paid by
the Buyer for any such obsolete parts, provided that the Seller's
liability in this respect does not extend to quantities in excess
of the Seller's Initial Provisioning recommendation.
4.5.1.3 The Seller shall use its reasonable efforts to obtain for the
Buyer the same protection from Suppliers.
4.5.2 BUY-BACK OF SURPLUS MATERIEL
4.5.2.1 The Seller agrees that at any time after one (1) year and within
three (3) years after delivery to the Buyer of the last of the
six (6) Aircraft purchased under this Agreement, the Buyer shall
have the right to return to the Seller, at a credit of one
hundred percent (100 %) of the original purchase price paid by
the Buyer, unused and undamaged Materiel as per sub-Clause 1.2
(i) and at a credit of one hundred percent (100 %) of the
original Supplier list price, unused and undamaged Materiel as
per sub-Clause 1.2 (ii) originally purchased from the Seller
under the terms hereof, provided that the selected protection
level does not exceed ninety-six percent (96 %) with a transit
time of twenty (20) days and said Materiel was recommended for
the Buyer's purchase in the Seller's Initial Provisioning
recommendations to the Buyer and does not exceed the provisioning
quantities recommended by the Seller, and is not shelflife
limited, or does not contain any shelflife limited components
with less than ninety percent (90 %) shelflife remaining when
returned to the Seller and provided that the Materiel is returned
with the Seller's original documentation (tag, certificates).
4.5.2.2 In the event of the Buyer electing to procure Materiel in excess
of the Seller's recommendation, the Buyer shall notify the Seller
thereof in writing, with due reference to the present Clause. The
Seller's agreement in writing is necessary before any Materiel in
excess of the Seller's recommendation shall be considered for
buy-back.
4.5.2.3 It is expressly understood and agreed that the rights granted to
the Buyer under this Clause 4.5.2 shall not apply to Materiel
which may become surplus to requirements due to obsolescence at
any time or for any reason other than those set forth in Clause
4.5.1 above.
4.5.2.4 Further, it is expressly understood and agreed that all credits
described in this Clause 4.5.2 shall be provided by the Seller to
the Buyer exclusively by means of credit notes to be entered into
the Buyer's spares account with the Seller.
4.5.3 All transportation costs for the return of obsolete or surplus
Materiel under this Clause 4, including any insurance and customs
duties applicable or other related expenditures, shall be borne
by the Buyer.
4.5.4 The Seller's obligation to buy back surplus Materiel is
conditioned upon the Buyer reasonably demonstrating that items
proposed for buy-back were in excess of the Buyer's requirements
after the initial purchase of such items.
4.6 INVENTORY USAGE DATA
The Buyer shall provide to the Seller at dates to be mutually
agreed a quantitative list of the parts used for maintenance and
overhaul of the Aircraft. The range and contents of this list
shall be established according to SPEC 2000, Chapter 5, or as
mutually agreed between the Seller and the Buyer. The Seller
shall treat this information as confidential and shall not
divulge it a third party without the consent of the Buyer, such
consent not to be unreasonably withheld.
5. WARRANTIES
5.1 SELLER PARTS
Subject to the limitations and conditions as hereinafter
provided, the Seller warrants to the Buyer that all Seller Parts
in sub-Clause 1.2 (i) shall at delivery to the Buyer:
(i) be free from defects in design and material,
(ii) be free from defects in workmanship, including without
limitation processes of manufacture,
(iii) be free from defects arising from failure to conform to
the applicable specification for such part.
5.2 WARRANTY PERIOD
5.2.1 The standard warranty period for new Seller Parts is
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] after delivery of such parts to the
Buyer.
5.2.2 The standard warranty period for used Seller Parts delivered by
and/or repaired, modified, overhauled or exchanged by the Seller
is [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] after delivery of such parts to the
Buyer.
5.3 BUYER'S REMEDY AND SELLER'S OBLIGATION
The Buyer's remedy and Seller's obligation and liability under
this Clause 5 are limited to the repair, replacement or
correction, at the Seller's expense and option, of any Seller
Part which is defective. Transportation costs shall be
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT].
The Seller may equally at its option furnish a credit to the
Buyer for the future purchase of Seller Parts equal to the price
at which the Buyer is then entitled to acquire a replacement for
the defective Seller Parts.
The provisions of Clauses 12.1.5 thru 12.1.10 of the Agreement
shall apply to this Clause 5 of this Exhibit "H".
5.4 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 5 ARE EXCLUSIVE
AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES
AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES
OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER
AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY
SELLER PART DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT
LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY,
WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT
ARISING FROM THE
SELLER'S NEGLIGENCE, ACTUAL OR IMPUTED; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART THEREOF.
THE SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER
ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER
DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT IN ANY SELLER PART DELIVERED UNDER THIS
AGREEMENT.
6 SELLER PARTS LEASING
6.1 GENERAL
The terms and conditions of this Clause 6 shall apply for the
leasing of Seller Parts listed in Appendix A to this Clause 6,
hereinafter "LEASED PARTS" or a "LEASED PART", and shall form a
part of each lease of Seller Parts by the Buyer from the Seller.
6.1.1 The terms and conditions of this Clause 6 shall prevail over all
other terms and conditions appearing on any order form or other
document pertaining to Leased Parts. The Seller's current
proprietary parts Repair Guide shall be provided to the Buyer and
shall be used, along with this Agreement, as the basis for Seller
Parts lease transactions between the Buyer and the Seller. In
case of discrepancy, this Agreement shall prevail.
6.1.2 For the purposes of this Clause 6, the term "LESSOR" refers to
the Seller and the term "LESSEE" refers to the Buyer.
6.1.3 Parts not included in Appendix A to this Clause 6 shall be the
subject of a separate lease agreement supplied by the Seller at
the Buyer's request.
6.2 LEASING PROCEDURE
Upon the Lessee's request by telephone (to be confirmed promptly
in writing), telefax, cable, SITA, letter or other written
instrument, the Lessor shall lease such Leased Parts, which shall
be made available in accordance with Clause 3.2.3 for the purpose
of being substituted for a part removed from an Aircraft for
repair or overhaul. Each lease of Leased Parts shall be evidenced
by a lease document (hereinafter "LEASE") issued by the Lessor to
the Lessee not later than [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] after delivery
of the Leased Part.
6.3 LEASE PERIOD
6.3.1 The total term of the Lease (hereinafter "LEASE PERIOD") shall be
counted from inclusively the day the Leased Part is delivered
Free Carrier (FCA) up to inclusively the day of receipt of the
Leased Part back at the Lessor or at any other address indicated
by the Lessor.
6.3.2 If a Leased Part is not returned by the Lessee within
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT], the Lease will be converted into a sale.
Should the Lessee not return the Leased Part to the Lessor within
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] and if the Lessor so elects, by giving
prompt written notice to the Lessee, such non return shall be
deemed to be an election by the Lessee to purchase the Leased
Part and, upon the happening of such event, the Lessee shall pay
the Lessor all amounts due under Clauses 6.4 and 6.8 for the
Leased Part for the Lease Period of [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
6.3.3 Notwithstanding the foregoing, the Lease Period shall end in the
event of, and upon the date that, the Lessee acquiring title to a
Leased Part as a result of exercise of the Lessee's option to
purchase the Leased Part, as provided for herein.
6.3.4 The chargeable period to lease a part is a minimum of
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]. If the shipment of the Leased Part has
been arranged but not yet despatched and the Lessee cancels the
lease order, the minimum chargeable period of [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] shall apply.
6.4 LEASE CHARGES AND TAXES
The Lessee shall pay the Lessor:
(i) a Lease fee per day of the Lease Period amounting to
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] of the part's sales
price as set forth in the Seller's Spare Parts Price List
in effect on the date of the commencement of the Lease
Period;
(ii) any reasonable additional costs which may be incurred by
the Lessor as a direct result of such Lease, such as
recertification, inspection, test, repair, overhaul,
removal of paint and/or repackaging costs as required to
place the Leased Part in a satisfactory condition for lease
to a subsequent customer;
(iii) all transportation and insurance charges; and
(iv) any taxes, charges or custom duties imposed upon the Lessor
or its property as a result of the Lease, sale, delivery,
storage or transfer of any Leased Part. All payments due
hereunder shall be made in accordance with Clause 4.
6.5 RISK OF LOSS, MAINTENANCE, STORING AND REPAIR OF THE LEASED PART
(i) The Lessee shall be liable for maintaining and storing the
Leased Part in accordance with all applicable rules of the
relevant aviation authorities and the technical
documentation and other instructions issued by the Lessor.
(ii) Except for normal wear and tear, each Leased Part shall be
returned to the Lessor in the same condition as when
delivered to the Lessee.
(iii) The Leased Part shall be repaired solely at repair
stations approved by the Lessor. If during the Lease
Period any inspection, maintenance, rework and/or repair
is carried out to maintain the Leased Part serviceable, in
accordance with the standards of the Lessor, the Lessee
shall provide details and documentation about the scope of
the work performed, including respective inspection, work
and test reports.
(iv) All documentation shall include, but not be limited to,
evidence of incidents such as hard landings, abnormalities
of operation and corrective action taken by the Lessee as
a result of such incidents.
(v) The Leased Part must not be lent to a third party.
(vi) Risk of loss or damage to each Leased Part shall remain
with the Lessee until such Leased Part is redelivered to
the Lessor at the return location specified in the
applicable Lease. If a Leased Part is lost, damaged beyond
economical repair or damaged unrepairable, the Lessee shall
be deemed to have exercised its option to purchase said
Leased Part in accordance with Clause 6.8 as of the date of
such loss or damage.
6.6 TITLE
Title to each Leased Part shall remain with the Lessor at all
times unless the Lessee exercises its option to purchase in
accordance with Clause 6.8, in which case title shall pass to the
Lessee upon receipt by the Lessor of the payment for the
purchased Leased Part.
6.7 RETURN OF LEASED PART
6.7.1 The Lessee shall return the Leased Part at the end of the Lease
Period to the address indicated herebelow:
AIRBUS INDUSTRIE
Materiel Support Centre
Weg beim Xxxxxx 000
00000 Xxxxxxx
Xxxxxxx
or any other address indicated by the Lessor.
6.7.2 The return shipping document shall indicate the reference of the
Lease document and the removal data, such as:
(i) aircraft manufacturer serial number
(ii)removal date
(iii) total flight hours and flight cycles for the period the
Leased Part was installed on the aircraft (iv)documentation in
accordance with Clause 6.5.
If the Lessee cannot provide the above mentioned data and
documentation for the Leased Part to be returned from Lease,
lease charges of [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT] of the Lessor's current
sales price for a new part plus [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] of the
accumulated Lease fees will be invoiced. According to the
Lessor's quality standards, parts are not serviceable without the
maintenance history data outlined above and have to be scrapped
on site.
6.7.3 The unserviceable or serviceable tag issued by the Lessee and the
original Lessor certification documents must be attached to the
Leased Part.
6.7.4 Except for normal wear and tear, each Leased Part shall be
returned to the Lessor in the same condition as when delivered to
the Lessee. The Leased Part shall be returned with the same
painting as when delivered (Airbus grey or primary paint). If the
Lessee is not in a position to return the Leased Part in the same
serviceable condition, the Lessee has to contact the Lessor for
instructions.
6.7.5 The Leased Part is to be returned in the same shipping container
as that delivered by the Lessor. The container must be in a
serviceable condition, normal wear and tear excepted.
6.7.6 The return of an equivalent part different from the Leased Part
delivered by the Lessor is not allowed without previous written
agreement of the Lessor, such agreement not to be unreasonably
withheld.
6.8 OPTION TO PURCHASE
6.8.1 The Lessee may at its option, exercisable by written notice given
to the Lessor during the Lease Period, elect to purchase the
Leased Part, in which case the then current sales price for such
Leased Part as set forth in the Seller's Spare Parts Price List
shall be paid by the Lessee to the Lessor. Should the Lessee
exercise such option, [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT] of the Lease rental
charges due pursuant to sub-Clause 6.4 (i) shall be credited to
the Lessee against said purchase price of the Leased Part.
6.8.2 In the event of purchase, the Leased Part shall be warranted in
accordance with Clause 5 as though such Leased Part were a Seller
Part, but the warranty period shall be deemed to have commenced
on the date such part was first installed on any Aircraft;
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] A warranty granted under this Clause
6.8.2 shall be in substitution for the warranty granted under
Clause 6.9 at the commencement of the Lease Period.
6.9 WARRANTIES
6.9.1 The Lessor warrants that each Leased Part shall at the time of
delivery be free from defects in material and workmanship which
could materially impair the utility of the Leased Part.
6.9.2 WARRANTY AND NOTICE PERIODS
The Lessee's remedy and the Lessor's obligation and liability
under this Clause 6.9, with respect to each defect, are
conditioned upon:
(i) the defect having become apparent to the Lessee within
the Lease Period and
(ii) the return by the Lessee as soon as practicable to the
return location specified in the applicable Lease, or
such other place as may be mutually agreed upon, of the
Leased Part claimed to be defective and
(iii) the Lessor's warranty administrator having received
written notice of the defect from the Lessee within
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT] after the
defect becomes apparent to the Lessee, with reasonable
proof that the claimed defect is due to a matter
embraced within the Lessor's warranty under this
Clause 6.9 and that such defect did not result from
any act or omission of the Lessee, including but not
limited to any failure to operate or maintain the
Leased Part claimed to be defective or the Aircraft in
which it was installed in accordance with applicable
governmental regulations and the Lessor's applicable
written instructions.
6.9.3 REMEDIES
The Lessee's remedy and the Lessor's obligation and liability
under this Clause 6.9 with respect to each defect are limited to
the repair of such defect in the Leased Part in which the defect
appears, or, as mutually agreed, to the replacement of such
Leased Part with a similar part free from defect.
Any replacement part furnished under this Clause 6.9.3 shall be
deemed to be the Leased Part so replaced.
6.9.4 SUSPENSION AND TRANSPORTATION COSTS
6.9.4.1 If a Leased Part is found to be defective and covered by this
warranty, the Lease Period and the Lessee's obligation to pay
rental charges as provided for in sub-Clause 6.4 (i) shall be
suspended from the date on which the Lessee notifies the Lessor
of such defect until the date upon which the Lessor has repaired,
corrected or replaced the defective Leased Part, provided,
however, that the Lessee has, promptly after giving such notice
to the Lessor, withdrawn such defective Leased Part from use. If
the defective Leased Part is replaced, such replaced part shall
be deemed to no longer be a Leased Part under the Lease as of the
date upon which such part was received by the Lessor at the
return location specified in the applicable Lease.
If a Leased Part is found to be defective upon first use by the
Lessee and is covered by this warranty, no rental charges as
provided in sub-Clause 6.4 (i) shall accrue and be payable by the
Lessee until the date on which the Lessor has repaired, corrected
or replaced the defective Leased Part.
6.9.4.2 All transportation and insurance costs of returning the defective
Leased Part and returning the repaired, corrected or replacement
part to the Lessee shall be borne by the Lessor.
6.9.5 WEAR AND TEAR
Normal wear and tear and the need for regular maintenance and
overhaul shall not constitute a defect or non-conformance under
this Clause 6.9.
6.9.6 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LESSOR AND
REMEDIES OF THE LESSEE SET FORTH IN THIS CLAUSE 6 ARE EXCLUSIVE
AND IN SUBSTITUTION FOR, AND THE LESSEE HEREBY WAIVES, RELEASES
AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES
OF THE LESSOR AND RIGHTS, CLAIMS AND REMEDIES OF THE LESSEE
AGAINST THE LESSOR, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE WITH RESPECT
TO ANY NON-CONFORMITY OR DEFECT IN ANY LEASED PART DELIVERED
UNDER THESE LEASING CONDITIONS INCLUDING BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER
CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM
THE LESSOR'S NEGLIGENCE, ACTUAL OR IMPUTED; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS
OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY
OR PART THEREOF.
LESSOR SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING,
FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT IN ANY LEASED PART DELIVERED UNDER THESE
LEASING CONDITIONS.
APPENDIX "A" TO CLAUSE 6 OF EXHIBIT "H"
SELLER PARTS AVAILABLE FOR LEASING
AILERONS
APU DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
SLATS
SPOILERS
AIRBRAKES
WING TIPS
WINGLETS
7 TERMINATION OF SPARES PROCUREMENT COMMITMENTS
7.1 In the event of the Agreement being terminated with respect to any
Aircraft due to causes provided for in Clauses 10, 11 or 20 of the
Agreement, such termination may also affect the terms of this Exhibit
"H" to the extent set forth in Clause 7.2 below.
7.2 Any termination under Clauses 10, 11 or 20 of the Agreement shall
discharge all obligations and liabilities of the parties hereunder with
respect to such undelivered spare parts, services, data or other items
to be purchased hereunder which are applicable to those Aircraft for
which the Agreement has been terminated. Unused spare parts in excess
of the Buyer's requirements due to such Aircraft cancellation shall be
repurchased by the Seller as provided for in Clause 4.5.2.
Exhibit J
DELIVERY OF AIRCRAFT A(TBD- TYPE)
MANUFACTURER'S SERIAL NUMBER : (TBD)
BUYER: (TBD)
OPERATOR : (TBD)
REGISTRATION LETTERS : (TBD)
LIST OF DOCUMENTS
I. TECHNICAL DOCUMENTS
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] SETS
1.1 Aircraft Certificates
- Type Certificates (first aircraft only) (copies)
- Certificate of Airworthiness for Export (original)
- Export Noise Certificate (original)
- Non Registration Certificate (original)
- Production Aircraft Test Completion Certificate (original)
(including Test History/Compass Swing/
Anemometric Records : if RVSM Option)
1.2 Airworthiness Directives Compliance List
1.3 Modification List
- Type Design Definition (first aircraft only)
- List of Aircraft Modification (In addition to Type Design Definition)
1.4 Aircraft Inspection Report
- Acceptance sheet
- Table of Contents
- List of Constituent Assemblies
- List of Equipment
- Conformity to the Design Standard Requirement
- Recordable Concessions
- Concessions for Customer Information
1.5 Weighing Report
1.6 Log Book (One of Each)
--------
- Engine Log LH (TBD)
- Engine Log RH (TBD)
- APU log Book
- Aircraft Log Book
- Batteries Log Book
1.7 DFDR System Description (first aircraft only) [CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
1.8 (TBD) Compliance Documents Depends on Purchase Agreement.
1.9 Manuals (one of each) Depends on P.A.
- Flight Manual
- Weight and Balance Manual
- Master Minimum Equipment list
- Quick Reference Handbook
- Flight Crew Operating Manual
1.10 Set of Keys
1.11 Additional Documents
- Identification list for Chemical Oxygen Generator
- Landing Gear Identified Parts Listing
- Disk : Aircraft Inspection Report
(Provided within a week after Delivery)
LETTER AGREEMENT 1
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
PURCHASE INCENTIVES
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the Seller")
have entered into a Purchase Agreement ("the Agreement") dated as
of even date herewith which covers the manufacture and the sale
by the Seller and the purchase by the Buyer of the A330 Aircraft
as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement.
Both parties agree that this Letter Agreement, upon execution
thereof, shall constitute an integral, nonseverable part of said
Agreement and shall be governed by all its provisions, as such
provisions have been specifically amended pursuant to this Letter
Agreement.
1. CREDIT MEMORANDA
The credits detailed below apply exclusively to Aircraft
purchased directly from the Seller by the Buyer, and are offered
on the basis of a firm order for six (6) Aircraft. Should the
Buyer fail to acquire or elect to acquire some of the initial
twelve Aircraft from leasing companies, the Seller reserves its
right to adjust, including by way of claiming reimbursement,
certain credits on a pro-rata basis.
1.1 AIRFRAME CREDIT MEMORANDUM
Upon delivery of each Aircraft to the Buyer, the Seller shall be
pleased to offer the Buyer a Credit Memorandum of : US Dollars
[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]
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]
1.5 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
1.6 The Credit Memoranda referred in in paragraphs 1.1, 1.2, 1.3, 1.4
and 1.5 above are expressed at economic conditions prevailing for
a theoretical delivery in January 2001 and will be subject
to escalation up to the delivery of the respective Aircraft in
accordance with the Airframe Price Revision Formula set out in
Exhibit C of the Agreement.
These Credit Memoranda shall be applied against the Final Price
of the respective Aircraft or may be used after delivery of the
relevant Aircraft for the purchase of goods and services from the
Seller or its affiliates.
1.7 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
1.8 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
1.9 SPARES CREDIT
Upon delivery of the first Aircraft, the Seller shall provide the
Buyer with a Credit memorandum in an amount of :
US Dollars [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT]
This Credit Memorandum shall be used by the Buyer for the
purchase of spare parts from the Seller.
1.10 The Credit Memoranda set out in paragraphs 1.8 and 1.9 are
expressed as [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT]
2 ASSIGNMENT
The special conditions set out in this Letter Agreement N(degree)
1 are personal to the Buyer and are not assignable.
If the foregoing sets forth our understanding please execute the original
and one copy thereof in the space provided and return the copy to the
Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date: Date :
LETTER AGREEMENT 2
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
PURCHASE RIGHTS
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the Seller")
have entered into a Purchase Agreement ("the Agreement") dated as
of even date herewith which covers the
manufacture and the sale by the Seller and the purchase by the
Buyer of the A330 Aircraft as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement.
Both parties agree that this Letter Agreement, upon execution
thereof, shall constitute an integral, nonseverable part of said
Agreement and shall be governed by all its provisions, as such
provisions have been specifically amended pursuant to this Letter
Agreement.
1. Scope
1.1 In addition to the six (6) Aircraft referred to in the Agreement, the
Seller grants the Buyer the right to purchase up to [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] additional
Aircraft referred to as the "PURCHASE RIGHT AIRCRAFT" [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
1.2 Upon the Buyer's written request, the Seller will quote the Buyer
available delivery slots for the Purchase Right Aircraft, as close as
possible to those requested by the Buyer, and consistent with the
Seller's then prevailing industrial and commercial constraints.
Upon payment by the Buyer of the Predelivery Payments due in accordance
with the schedule set out in Clause 5.3.2 of the Agreement, the Seller
shall reserve such slots for the Buyer, this Purchase Right Aircraft
becoming as a result a firm Aircraft, and being referred to as a "FIRM
PURCHASE RIGHT AIRCRAFT".
2. SPECIFICATION
The Purchase Right Aircraft shall conform to the same Specification as
applicable to the Aircraft that are subject to firm order, and shall
include any development changes as defined in Clause 2.1.3 of the
Agreement, and any SCN's mutually agreed between the Buyer and the
Seller after the signature of the Agreement.
3. PRICE AND PRICE REVISION
The Airframe price and the Revision Formulae applicable to the six (6)
firm Aircraft shall apply to such Firm Purchase Right Aircraft,
provided they are delivered prior to [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT].
4. PURCHASE INCENTIVES
The Credit Memoranda set out in paragraphs 1.1, 1.2, 1.3, 1.4, and 1.5
of Letter Agreement N(degree) 1 shall apply to the PurcHAsE Right
Aircraft. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT].
5. ADDITIONAL PURCHASE RIGHT INCENTIVE
The Seller shall provide the Buyer with an additional Purchase Right
incentive in an amount of US Dollars [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
This additional incentive shall be made available at the delivery of
each of the first two Firm Purchase Right Aircraft. It is expressed as
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
6. The delivery flexibility set out in Letter Agreement N(degree) 4 shall
apply to the Purchase Right Aircraft, provided that therE iS a minimum
period of [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] between the date of firming-up the
Firm Purchase Right Aircraft, and the initial delivery date of the Firm
Purchase Right Aircraft.
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]
8.1 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
8.2 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
8.3 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
8.4 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
8.5 Account
All amounts paid [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] by the Buyer will be paid to the Seller's bank
account Natexis Banque Toulouse [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT] with:
SWIFT BFCE XXXX-000
XX000
00000 Xxxxxxxx Xxxxx Xxxxxx
or to such other account as the Seller may specify.
9. ASSIGNMENT
The Purchase Right Aircraft are personal to the Buyer and cannot be
assigned to third parties without the Seller's prior consent in
writing. Such consent shall not be unreasonably withheld.
If the foregoing sets forth our understanding please execute the
original and one copy thereof in the space provided and return the copy
to the Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date: Date:
LETTER AGREEMENT 3
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
TYPE FLEXIBILITY
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the Seller")
have entered into a Purchase Agreement ("the Agreement") dated as
of even date herewith which covers the manufacture and the sale
by the Seller and the purchase by the Buyer of the A330 Aircraft
as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement.
Both parties agree that this Letter Agreement, upon execution
thereof, shall constitute an integral, nonseverable part of said
Agreement and shall be governed by all its provisions, as such
provisions have been specifically amended pursuant to this Letter
Agreement.
1. The Buyer may convert each of the six (6) firmly ordered A330-200
Aircraft into A330-300 aircraft and each Firm Purchase Right
Aircraft into an A330-300 Aircraft, A340-300 Enhanced, A340-500
or A340-600 Aircraft, in accordance with the conditions set out
in paragraph 3 below.
2. Each A330-300 Aircraft, X000-000 Xxxxxxxx Aircraft, A340-500
Aircraft or A340-600 Aircraft resulting from the conversion
rights set out in this Letter Agreement N(degree) 3 (the "TYPE
CONVERSION RIGHT") shall be referred to as the "CONVERTED
A330-300", the "CONVERTED X000-000 XXXXXXXX RIGHT", the
"CONVERTED A340-300 ENHANCED PURCHASE RIGHT", the "CONVERTED
X000-000 XXXXXXXX RIGHT", or the "CONVERTED X000-000 XXXXXXXX
RIGHT" as the case may be.
3. The Type Conversion Right shall be exercised by the Buyer in the
following manner:
3.1 In respect of the six (6) firmly ordered A330-200 Aircraft being
converted into a Converted A330-300, by giving the Seller written
notice no later than [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT] prior to the first day
of the Scheduled Delivery Month of the Aircraft to be converted.
3.2 In respect of the Purchase Right Aircraft being converted into a
Converted X000-000 Xxxxxxxx Right, a Converted A340-300 Enhanced
Purchase Right, a Converted X000-000 Xxxxxxxx Right or a
Converted X000-000 Xxxxxxxx Right, by giving notice to the Seller
no later than
(i) [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
or
(ii) [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] in respect of a
Converted X000-000 Xxxxxxxx Right or a Converted X000-000
Xxxxxxxx Purchase Right, and [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] in respect of a Converted X000-000 Xxxxxxxx
Right or Converted X000-000 Xxxxxxxx Right prior to the
first day of the month in which the Aircraft to be
converted is scheduled for delivery.
4. DELIVERY DATE OF THE CONVERTED AIRCRAFT
4.1 The Scheduled Delivery Month of the Converted A330-300, Converted
X000-000 Xxxxxxxx Right or Converted A340-300 Enhanced Purchase
Right will be no more than [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] before or
[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
4.2 The Scheduled Delivery Month of the Converted X000-000 Xxxxxxxx
Right or Converted X000-000 Xxxxxxxx Right will be :
(i) [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
or
(ii) [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
5. CONDITIONS APPLICABLE TO THE CONVERTED AIRCRAFT
5.1 The table below provides the prices and special conditions
applicable to the Converted Aircraft. All prices and conditions
are expressed at January 2001 delivery conditions.
A330-300 A340-300ENHANCED A340-500 A340-600
STANDARD SPEC G.000.03000 F.000.03000 F.000.05000 F.000.06000
Issue 7 Issue 7 Issue 1 Rev 3 Issue 1 Rev 3
MTOW
AIRFRAME [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
AIRCRAFT EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
SCNS
BFE
CF6-80E1A3
PW 4168A
TRENT 772B
AIRFRAME CREDIT
MEMORANDUM
AIRCRAFT CREDIT
MEMORANDUM
Such basic prices and special conditions are valid for Converted
Aircraft delivered prior to [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. The Propulsion
Systems prices and associated price revision formulae are based
upon information received from the respective Propulsion System
Manufacturers and remain subject to any modification that might be
imposed by the Propulsion System Manufacturer on the Seller and/or
the Buyer.
5.2 The Airframe Credit Memorandum or Aircraft Credit Memorandum set
out in the above table replace the Airframe Credit Memorandum
applicable to the A330-200 Aircraft, set out paragraph 1.1 of
Letter Agreement N(degree) 1.
5.3 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
5.4 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
5.5 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
5.6 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
6. Any Type Conversion Right can only be exercised once per Aircraft.
If the foregoing sets forth our understanding please execute the original
and one copy thereof in the space provided and return the copy to the
Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date: Date:
LETTER AGREEMENT 4
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
DELIVERY FLEXIBILITY
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the Seller")
have entered into a Purchase Agreement ("the Agreement") dated as
of even date herewith which covers the manufacture and the sale
by the Seller and the purchase by the Buyer of the A330 Aircraft
as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement.
Both parties agree that this Letter Agreement, upon execution
thereof, shall constitute an integral, nonseverable part of said
Agreement and shall be governed by all its provisions, as such
provisions have been specifically amended pursuant to this Letter
Agreement.
1. The Seller grants the Buyer the right to reschedule some of the six
(6) Aircraft according to the conditions outlined below. Once an
Aircraft has been rescheduled according to the following provisions,
it shall be referred to as a "RESCHEDULED AIRCRAFT".
2. Starting with [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT], the Buyer shall have the right to
reschedule the delivery date of [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. The rescheduling
right shall be exercised by the Buyer at the latest on the first day
of [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] prior to the Scheduled Delivery Month of the
relevant Aircraft. In any event, the rescheduled delivery month
shall not be later than [CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] after the initial Scheduled
Delivery Month.
3. The rescheduled delivery month offered by the Seller pursuant to
this Letter Agreement shall be in accordance with the Seller's then
prevailing industrial and commercial constraints.
4. The rescheduled delivery month as notified in writing by the Seller
shall be deemed to be the new Scheduled Delivery Month, and the
Predelivery Payment schedule of the Rescheduled Aircraft
shall be adjusted to reflect the new Scheduled Delivery Month, in
respect of that portion of the Predelivery Payments which were not
yet due at the time of rescheduling under the previous delivery
schedule. [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. On a case by case basis, and subject to its then prevailing
industrial and commercial constraints, the Seller shall also
consider any request for acceleration of the delivery schedule.
7. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
If the foregoing sets forth our understanding please execute the original
and one copy thereof in the space provided and return the copy to the
Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date: Date :
LETTER AGREEMENT 5
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
PRODUCT SUPPORT MATTERS
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the Seller")
have entered into a Purchase Agreement ("the Agreement") dated as
of even date herewith which covers the manufacture and the sale
by the Seller and the purchase by the Buyer of the A330 Aircraft
as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement.
Both parties agree that this Letter Agreement, upon execution
thereof, shall constitute an integral, nonseverable part of said
Agreement and shall be governed by all its provisions, as such
provisions have been specifically amended pursuant to this Letter
Agreement.
1. STANDARD WARRANTY
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]
2. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
2.1 [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
2.2 [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]
3. TECHNICAL DOCUMENTATION
Upon the Buyer's request and whenever practicable, the Seller shall
provide the Buyer with a preliminary copy of certain Technical
Documentation, according to a schedule to be agreed with the Buyer.
4. MAINTENANCE PROVIDER
Upon the Buyer's request, the Seller shall consider entering into a
Data Release Agreement with a Maintenance Provider approved by the
relevant Airworthiness Authority for maintenance of Airbus A330
aircraft, whereby the Buyer may assign to the maintenance provider
some of the training or Technical Documentation procured to the Buyer
under the Agreement.
5. SPARES REPRESENTATIVE SUPPORT
In order to ensure a smooth operational entry into service, the
Seller will second a spares representative to the Buyer premises, if
so required. The services of this spares representative will be
provided free of charge to the Buyer for a period of up to
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT].
6. WARRANTIES APPLICABLE TO SELLER PARTS
[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. LEASED AIRCRAFT
The Buyer has informed the Seller that it intends to lease A330
aircraft from leasing companies, these leased aircraft being
manufactured to the same definition as the Aircraft purchased under
this Agreement.
8.1 The Seller agrees to incorporate the leased aircraft into the
customised Technical Data and Documentation at no cost to the Buyer.
The Buyer shall provide the Seller with a notice at least
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT] for such incorporation. Removal of the leased
aircraft from the Technical Documentation and Data at the term of the
lease shall be invoiced to the Buyer at the then current catalogue
price.
8.2 The Seller agrees to include such leased aircraft into initial
provisioning data, or a revision thereof as the case may be. The
Seller and the Buyer shall mutually agree the notice period which is
required for such incorporation.
8.3 The Seller shall ensure that the leased aircraft, whereby the Buyer
is the initial Lesse/ Operator, [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT].
9. DOOR TRAINER DATA PACKAGE
The Seller will provide the Buyer a standard data package for an A330
door trainer. Such data package will include mechanical drawings for the
door and surrounding for use in the Buyer's facilities.
10. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
If the foregoing sets forth our understanding please execute the original and
one copy thereof in the space provided and return the copy to the Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date : Date :
LETTER AGREEMENT 7A
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
A330-200 PERFORMANCE GUARANTEES (GE ENGINES)
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the
Seller") have entered into a Purchase Agreement ("the Agreement")
dated as of even date herewith which covers the manufacture and
the sale by the Seller and the purchase by the Buyer of the A330
Aircraft as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement.
Both parties agree that this Letter Agreement, upon execution
thereof, shall constitute an integral, nonseverable part of said
Agreement and shall be governed by all its provisions, as such
provisions have been specifically amended pursuant to this Letter
Agreement.
1. AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable
to the A330-200 Aircraft as described in the Technical Specification
Ref. G.000.02000 Issue 4 dated 18th May 2001 and powered by General
Electric CF6-80E1A3 engines at a nominal thrust rating of 72,000 lbf
as amended by the Specification Change Notices ("SCN") for the
increase of Design Weights:
Maximum Taxi Weight 233,900 kg
Maximum Take-off Weight (MTOW) 233,000 kg
Maximum Landing Weight (MLW) 182,000 kg
Maximum Zero Fuel Weight (MZFW) 170,000 kg
("the Specification") without taking into account any further changes thereto as
provided in the Agreement.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date : Date :
LETTER AGREEMENT 7 B
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
A330-200 PERFORMANCE GUARANTEES (PW ENGINES)
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the
Seller") have entered into a Purchase Agreement ("the Agreement")
dated as of even date herewith which covers the manufacture and
the sale by the Seller and the purchase by the Buyer of the A330
Aircraft as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement. Both parties agree that this Letter Agreement, upon
execution thereof, shall constitute an integral, nonseverable
part of said Agreement and shall be governed by all its
provisions, as such provisions have been specifically amended
pursuant to this Letter Agreement.
1. AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the A330-200 Aircraft as described in the Technical Specification
Ref. G.000.02000 Issue 4 dated 18th May 2001 and powered by Xxxxx
and Xxxxxxx XX 4168A engines at a nominal thrust rating of 68,000
lbf as amended by the Specification Change Notices ("SCN") for the
increase of Design Weights:
Maximum Taxi Weight 233,900 kg
Maximum Take-off Weight (MTOW) 233,000 kg
Maximum Landing Weight (MLW) 182,000 kg
Maximum Zero Fuel Weight (MZFW) 170,000 kg
("the Specification") without taking into account any further changes
thereto as provided in the Agreement.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
If the foregoing sets forth our understanding please execute the
original and one copy thereof in the space provided and return the copy to the
Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date : Date :
LETTER AGREEMENT 7 C
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
A330-200 PERFORMANCE GUARANTEES (RR ENGINES)
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the
Seller") have entered into a Purchase Agreement ("the Agreement")
dated as of even date herewith which covers the manufacture and the
sale by the Seller and the purchase by the Buyer of the A330 Aircraft
as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this Letter
Agreement shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof,
shall constitute an integral, nonseverable part of said Agreement and
shall be governed by all its provisions, as such provisions have been
specifically amended pursuant to this Letter Agreement.
1. AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to the
A330-200 Aircraft as described in the Technical Specification Ref.
G.000.02000 Issue 4 dated 18th May 2001 and powered by Rolls Xxxxx XXXXX
772B engines at a nominal thrust rating of 71,100 lbf as amended by the
Specification Change Notices ("SCN") for the increase of Design Weights:
Maximum Taxi Weight 233,900 kg
Maximum Take-off Weight (MTOW) 233,000 kg
Maximum Landing Weight (MLW) 182,000 kg
Maximum Zero Fuel Weight (MZFW) 170,000 kg
("the Specification") without taking into account any further changes
thereto as provided in the Agreement.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
If the foregoing sets forth our understanding please execute the original and
one copy thereof in the space provided and return the copy to the Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date : Date :
LETTER AGREEMENT 8
KLM Royal Dutch Airlines
Xxxxxxxxxxxxxx 00,
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
MISCELLANEOUS
KLM ROYAL DUTCH AIRLINES ("the Buyer") and AIRBUS ("the Seller")
have entered into a Purchase Agreement ("the Agreement") dated as
of even date herewith which covers the manufacture and the sale
by the Seller and the purchase by the Buyer of the A330 Aircraft
as described in the Agreement.
Capitalized terms used herein and not otherwise defined in this
Letter Agreement shall have the meanings assigned thereto in the
Agreement.
Both parties agree that this Letter Agreement, upon execution
thereof, shall constitute an integral, nonseverable part of said
Agreement and shall be governed by all its provisions, as such
provisions have been specifically amended pursuant to this Letter
Agreement.
1. SFE CHARGE
The Seller confirms that in the event that the Buyer chooses to convert
the Buyer Furnished Equipment (BFE) into Seller Furnished Equipment
(SFE), the handling charge invoiced by the Seller shall [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. SOFTWARE FUNCTIONS
Aircraft configuration changes involving equipment software updating
are in general covered by Airbus Service Bulletins. [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]
If the foregoing sets forth our understanding please execute the original and
one copy thereof in the space provided and return the copy to the Seller.
Agreed and accepted Agreed and accepted
For and on behalf of For and on behalf of
KLM ROYAL DUTCH AIRLINES AIRBUS GIE
By: By:
Its : Its :
Date : Date :
