AIRCRAFT GENERAL TERMS AGREEMENT
BETWEEN
AIRBUS
S.A.S.
as
Seller
A N D
CHINA SOUTHERN AIRLINES
COMPANY LIMITED
as
Buyer
AND
CHINA SOUTHERN AIRLINES
GROUP IMPORT AND EXPORT TRADING CORP., LTD.
As
Consenting Party
Buyer's
reference: 09SIES1033FR
Seller's
reference: CT0803291
Private
& Confidential
CONTENTS
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CLAUSES
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TITLES
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0
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DEFINITIONS
AND INTERPRETATION
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1
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SCOPE
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2
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SPECIFICATION
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3
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PRICES
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4
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PRICE
REVISION
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5
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PAYMENTS
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6
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MANUFACTURE
PROCEDURE - INSPECTION
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7
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CERTIFICATION
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8
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BUYER'S
TECHNICAL ACCEPTANCE
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9
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DELIVERY
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10
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EXCUSABLE
DELAY
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11
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NON-EXCUSABLE
DELAY
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12
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WARRANTIES
AND SERVICE LIFE POLICY
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13
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PATENT
AND COPYRIGHT INDEMNITY
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14
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TECHNICAL
DATA AND SOFTWARE SERVICES
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15
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SELLER
REPRESENTATIVE SERVICES
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16
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TRAINING
SUPPORT AND SERVICES
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17
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EQUIPMENT
SUPPLIER PRODUCT SUPPORT
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18
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BUYER
FURNISHED EQUIPMENT
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19
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INDEMNIFICATION
AND INSURANCE
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20
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TERMINATION
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21
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ASSIGNMENTS
AND TRANSFERS
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22
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MISCELLANEOUS
PROVISIONS
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2009
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Foreword -
Page 2/4
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CT0803291
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Private
& Confidential
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CONTENTS
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EXHIBITS
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TITLES
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Exhibit
A
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SPECIFICATION
(included via the relevant Purchase Agreement)
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Exhibit
B
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FORM
OF SPECIFICATION CHANGE NOTICE
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Exhibit
C
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AIRFRAME
PRICE REVISION FORMULA (included via the relevant Purchase
Agreement)
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Exhibit
D
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FORM
OF CERTIFICATE OF ACCEPTANCE
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Exhibit
E
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FORM
OF XXXX OF SALE
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Exhibit
F
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SERVICE
LIFE POLICY - LIST OF ITEMS
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Exhibit
G
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TECHNICAL
DATA INDEX
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Exhibit
H
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MATERIAL
SUPPLY AND SERVICES
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Exhibit
I
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LICENSES
AND ON-LINE
SERVICES
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2009
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Foreword -
Page 3/4
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CT0803291
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Private
& Confidential
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This
aircraft general terms agreement (the "AGTA") is made as
of ,
2010.
BETWEEN:
AIRBUS S.A.S., a société par actions
simplifiée, 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 383 474 814 (the "Seller"),
and
CHINA SOUTHERN AIRLINES COMPANY
LIMITED, a company organised under the laws of the People's Republic of
China having its principal place of business at Bai Yun Airport, Guangzhou
510405, People's Republic of China, (the “Buyer”),
and
CHINA SOUTHERN AIRLINES GROUP IMPORT
AND EXPORT TRADING CORP., LTD., formerly known as CHINA SOUTHERN AIRLINES
(GROUP) IMPORT AND EXPORT TRADING CORPORATION, having its principal
office at Bai Yun Airport, Guangzhou 510405, People's Republic of China (the
"Consenting
Party").
The
Seller, the Buyer and the Consenting Party referred together as the “Parties”
and each a “Party”.
WHEREAS the Seller and the
Buyer, with the consent of the Consenting Party, wish to agree on the general
terms and conditions which shall govern certain Purchase Agreements for
Aircraft (as defined in Clause 0) between them on or after the date
hereof.
NOW
THEREFORE IT IS AGREED AS FOLLOWS:
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2009
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Foreword -
Page 4/4
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CT0803291
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Private
& Confidential
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0
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DEFINITIONS AND
INTERPRETATION
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0.1
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In
addition to words and terms elsewhere defined in this AGTA, the initially
capitalised words and terms used in this AGTA shall have the meaning set
out below.
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Affiliate
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means
with respect to any person or entity, any other person or entity directly
or indirectly controlling, controlled by or under common control with such
person or entity.
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AirbusSpares
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has
the meaning set forth in Part 3 of Exhibit I.
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AirbusWorld
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has
the meaning set forth in Part 2 of Exhibit I.
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Aircraft
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means
an Airbus A320 family, A330 family or A340 family model 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 the relevant Purchase Agreement.
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Aircraft
Base Price
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has
the meaning set out in Clause 3.2
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Aircraft
Price Revision
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Formula
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is
set out in the relevant Purchase Agreement.
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Aircraft
Training Services
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means
any flight support services including but not limited to any and all
training courses, flight training, flight assistance, line training, line
assistance and more generally all flights of any kind performed by the
Seller, its agents, employees or subcontractors, and maintenance support,
maintenance training (including Practical Training), training support of
any kind performed on aircraft and provided to the Buyer pursuant to the
relevant Purchase Agreement.
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Airframe
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means
the Aircraft excluding the Propulsion Systems.
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Airframe
Base Price
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has
the meaning set out in Clause 3.1.1
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Airframe
Price Revision
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Formula
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is
set out in the relevant Purchase Agreement.
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Aviation
Authority
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means
when used in respect of any jurisdiction the government entity, which
under the laws of such jurisdiction has control over civil aviation or the
registration, airworthiness or operation of aircraft in such
jurisdiction.
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Balance
of Final Price
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has
the meaning set out in Clause 5.4.1.
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Base
Price
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means
(i) the sum of the Airframe Base Price and the Propulsion Systems Base
Price or (ii) the Aircraft Base Price as the case may
be.
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Xxxx
of Sale
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has
the meaning set out in Clause
9.2.2.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause
0 - Page 1/4
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CT0803291
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Private
& Confidential
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Business
Day
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means
a day, other than a Saturday or a Sunday, on which business of the kind
contemplated by the relevant Purchase Agreement is carried on in France,
in Germany and in the Buyer’s country or, where used in relation to a
payment, which is a day on which banks are open for business in France, in
Germany, in the Buyer's country and in New York, as
appropriate.
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Buyer
Furnished
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Equipment
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has
the meaning set out in Clause 18.1.1.
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Certificate
of Acceptance
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has
the meaning set out in Clause 8.3.
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Chinese
Delivery Location
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means
the Seller’s facility in Tianjin, People’s Republic of
China
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Contractual
Definition
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Freeze
or CDF
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has
the meaning set out in Clause 2.4.2
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Customization
Milestones
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Chart
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has
the meaning set out in Clause 2.4.1
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DDU
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Delivered
Duty Unpaid, according to the International Commercial Terms (Incoterms),
published by International Chamber of Commerce
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Default
Rate
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means
the rate of Default Interest as defined in Clause 5.7.
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Delivery
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means
the transfer of title to the Aircraft from the Seller to the Buyer in
accordance with Clause 9.
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Delivery
Date
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means
the date on which Delivery shall occur.
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Delivery
Location
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means
the European Delivery Location or the Chinese Delivery Location as
applicable.
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European
Delivery
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Location
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means
the facilities of the Seller at the location of the final assembly of the
Aircraft currently in Blagnac, France or in Hamburg,
Germany.
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Excusable
Delay
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has
the meaning set out in Clause 10.1.
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Export
Airworthiness
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Certificate
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means
an export certificate of airworthiness or an equivalent document issued by
a European Aviation Authority.
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Final
Price
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has
the meaning set out in Clause 3.1.3 or 3.2.2 as
appropriate
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General
Terms and
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Conditions
or GTC
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means
the General Terms and Conditions of Access to and Use of AirbusWorld set
forth in Part 4 to Exhibit
I.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause
0 - Page 2/4
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CT0803291
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Private
& Confidential
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Goods
and Services
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means
any goods and services that may be purchased by the Buyer from the Seller
as listed in the Seller’s relevant customer services catalogue, excluding
all aircraft models.
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Gross
Negligence
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means
any act or omission done with intent to cause damage or recklessly and
with knowledge that damage would probably result.
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Ground
Training Services
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means
all training courses performed in classrooms (classical or Airbus CBT
courses), full flight simulator sessions, fixed base simulator sessions,
field trips and any other services provided to the Buyer on the ground
pursuant to the relevant Purchase Agreement, and which are not Aircraft
Training Services.
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Manufacture
Facilities
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means
the various manufacture facilities of the Seller, its Affiliates or any
sub-contractor where the Airframe or its parts are manufactured or
assembled.
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Manufacturer
Specification
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Change
Notice or MSCN
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has
the meaning set out in Clause 2.2.2.1.
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Material
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has
the meaning set out in Clause 1.2 of Exhibit H.
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Non-Excusable
Delay
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has
the meaning set out in Clause 11.1.
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Predelivery
Payment
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means
the payment(s) determined in accordance with Clause
5.3.
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Propulsion
Systems
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has
the meaning set out in Clause 2.3.
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Propulsion
Systems Base
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Price
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means
the price of a set of Propulsion Systems as set out in Clause
3.1.2.
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Propulsion
Systems
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Reference
Price
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means
the reference price of a set of Propulsion Systems as set out in the
relevant Purchase Agreement.
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Propulsion
Systems
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Manufacturer
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means
the manufacturer of the Propulsion Systems as set out in the relevant
Purchase Agreement.
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Propulsion
Systems Price
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Revision
Formula
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is
set out as an attachment to the relevant Purchase
Agreement.
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Purchase
Agreement
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means
a purchase agreement for Aircraft between the Buyer and the Seller which
incorporates the terms and conditions of this AGTA.
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Ready
for Delivery
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means
the time when (i) the Technical Acceptance Process has been successfully
completed and (ii) the Export Airworthiness Certificate has been
issued.
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Scheduled
Delivery Month
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has
the meaning set out in Clause 9.1 and in the relevant Purchase
Agreement.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause
0 - Page 3/4
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CT0803291
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Private
& Confidential
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Seller
Furnished
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Equipment
or SFE
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corresponds
to items of equipment that are identified in the Specification as being
furnished by the Seller.
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Seller
Representatives
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means
the representatives of the Seller referred to in Clause
15.
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Seller
Representatives
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Services
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means
the services provided by the Seller to the Buyer and from the Buyer to the
Seller pursuant to Clause 15.
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Seller
Service Life Policy
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has
the meaning set out in Clause 12.2.
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Spare
Parts
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means
the items of equipment and material which may be provided pursuant to
Exhibit H.
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Specification
Change
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Notice
or SCN
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means
an agreement in writing between the Parties to amend the Specification
pursuant to Clause 2.
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Specification
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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 and MSCNs.
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Standard
Specification
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means
the Seller’s standard specification document relating to the Aircraft
purchased and sold as specified in the relevant Purchase Agreement, a copy
of which is annexed as an attachment to the relevant Purchase
Agreement.
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Supplier
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has
the meaning set out in Clause 12.3.1.1.
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Supplier
Part
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has
the meaning set out in Clause 12.3.1.2.
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Supplier
Product
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Support
Agreement
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has
the meaning set out in Clause 12.3.1.3.
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Technical
Data
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has
the meaning set out in Clause 14.1.
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Total
Loss
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has
the meaning set out in Clause 10.4.
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Type
Certificate
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has
the meaning set out in Clause 7.1.
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Warranted
Part
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has
the meaning set out in Clause
12.1.1.
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0.2
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Clause headings
and the index in this AGTA are inserted for convenience of reference only
and shall be ignored in the interpretation of this
AGTA.
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0.3
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In
this AGTA unless the context otherwise
requires:
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(a)
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references
to Clauses, Schedules, Appendices and Exhibits are to be construed as
references to the Clauses, Schedules, Appendices, and Exhibits to this
AGTA and references to this AGTA include its Clauses, Schedules, Exhibits
and Appendices;
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause
0 - Page 4/4
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CT0803291
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Private
& Confidential
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(b)
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words
importing the plural shall include the singular and vice versa;
and
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(c)
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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.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause
0 - Page 5/4
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CT0803291
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Private
& Confidential
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1
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SCOPE
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The
Buyer and the Seller have agreed, in this AGTA, to establish the
contractual framework which will apply to Aircraft contracted for purchase
and sale under certain, separate Purchase Agreements executed on or after
the date of this AGTA. This AGTA is designed to produce full effect only
when supplemented by such Purchase Agreements. The relevant Purchase
Agreements shall specifically incorporate the terms of this AGTA and shall
in particular identify the relevant model, the quantity and the Scheduled
Delivery Months of the Aircraft that the Seller shall sell and deliver and
the Buyer shall buy and take delivery of at the Delivery Location upon the
terms and conditions contained in this AGTA and in the relevant Purchase
Agreement.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause 1 - Page
1/1
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CT0803291
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Private
& Confidential
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2
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SPECIFICATION
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2.1
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Aircraft
Specification
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The
Aircraft shall be manufactured in accordance with the Standard
Specification, as amended or varied prior to and in effect on the date of
the relevant Purchase Agreement by the Specification Change Notices listed
in an attachment to the relevant Purchase
Agreement.
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2.2
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Specification
Amendment
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The
Parties understand and agree that the Specification may be amended following
signature of the relevant Purchase Agreement as set in accordance with the terms
of this Clause 2.
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2.2.1
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Specification Change
Notice
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The
Specification may be amended by written agreement between the Parties in a
Specification Change Notice (SCN). Each SCN shall be
substantially in the form set out in Exhibit B1 and shall set out the
SCN’s Aircraft embodiment rank and shall also set forth, in detail, the
particular change to be made to the Specification and the effect, if any,
of such change on design, performance, weight, Delivery Date of the
Aircraft affected thereby and on the text of the Specification. A SCN may
result in an adjustment of the Base Price, which adjustment, if any, shall
be specified in the SCN.
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2.2.2
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Development
Changes
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The
Specification may also be amended to incorporate changes deemed necessary
by the Seller to improve the Aircraft, prevent delay or ensure compliance
with the AGTA and/or the relevant Purchase Agreement (“Development Changes”),
as set forth in this Clause 2.
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2.2.2.1
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Manufacturer Specification
Changes Notices
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The
Specification may be amended by the Seller through a Manufacturer Specification
Change Notice (“MSCN”), which shall be substantially in the form set out in
Exhibit B2 hereto and shall set out the MSCN’s Aircraft embodiment rank as well
as, in detail, the particular change to be made to the Specification and the
effect, if any, of such change on performance, weight, Base Price, Delivery Date
of the Aircraft affected thereby and interchangeability or replaceability
requirements under the Specification.
Except
when the MSCN is necessitated by an Aviation Authority directive or by equipment
obsolescence, in which case the MSCN shall be accomplished without requiring the
Buyer’s consent, if the MSCN adversely affects the performance, weight, Base
Price, Delivery Date of the Aircraft affected thereby or the interchangeability
or replaceability requirements under the Specification, the Seller shall notify
the Buyer of a reasonable period of time during which the Buyer must accept or
reject such MSCN. If the Buyer does not notify the Seller of the rejection of
the MSCN within such period, the MSCN shall be deemed accepted by the Buyer and
the corresponding modification shall be accomplished.
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2.2.2.2
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In
the event of the Seller revising the Specification to incorporate
Development Changes which have no adverse effect on any of the elements as
set forth in 2.2.2.1 above, such revision shall be performed by the Seller
without the Buyer’s consent.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause 2 - Page
1/2
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CT0803291
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Private
& Confidential
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In
such cases, the Seller shall provide to the Buyer the details of all
changes in an adapted format and on a regular
basis.
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2.3
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Propulsion
Systems
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The
Airframe shall be equipped with a set of engines (including nacelles and
thrust reverser when appropriate), the manufacturer, type and quantity per
Aircraft of which will be specified in the relevant Purchase
Agreement, (the "Propulsion
Systems").
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2.4
|
Milestones
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2.4.1
|
Customisation Milestones
Chart
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Within
a reasonable period following signature of the relevant Purchase
Agreement, the Seller shall provide the Buyer with a customisation
milestones chart setting out the minimum lead times prior to the Scheduled
Delivery Month of the Aircraft, when an SCN must be executed in order to
integrate into the Specification, any items requested by the Buyer from
the catalogues of Specification change options (the “Options Catalogues”)
made available by the Seller (the “Customization Milestones
Chart”).
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2.4.2
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Contractual Definition
Freeze
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The
Customization Milestone Chart shall in particular define the date(s) by
which the contractual definition of the Aircraft must be finalized and all
SCNs need to have been executed by the Buyer (the “Contractual Definition
Freeze” or “CDF”) in order to enable
their incorporation into the manufacturing of the Aircraft and Delivery of
the Aircraft in the Scheduled Delivery Month. Each such date shall be
referred to as a “CDF
Date”.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
|
Clause 2 - Page
2/2
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CT0803291
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Private
& Confidential
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3
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PRICES
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Depending
on the Aircraft model, Clause 3.1 or Clause 3.2 shall
apply.
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3.1
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Airframe Base Price and
Propulsion Systems Base
Price
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3.1.1
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Airframe Base
Price
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|
The
base price of the Airframe (the “Airframe Base Price”) is as specified in
the relevant Purchase Agreement.
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3.1.2
|
Propulsion Systems Base
Price
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|
The
base price of a set of the Propulsion Systems (the “Propulsion Systems
Base Price”) is as specified in the relevant Purchase
Agreement.
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3.1.3
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Final
Price
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The
Final Price of each Aircraft shall be the sum
of:
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(i)
|
the
Airframe Base Price as revised as of the Delivery Date in accordance with
Clause 4.1.1; plus
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(ii)
|
the
aggregate of all increases or decreases to the Airframe Base Price as
agreed in any Specification Change Notice or MSCN or any part thereof
applicable to the Airframe subsequent to the date of the relevant Purchase
Agreement as revised as of the Delivery Date in accordance with Clause
4.1.1; plus
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(iii)
|
the
Propulsion Systems Reference Price as revised as of the Delivery Date in
accordance with Clause 4.1.2;
plus
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(iv)
|
the
aggregate of all increases or decreases to the Propulsion
Systems Reference Price as agreed in any Specification Change
Notice or MSCN or part thereof applicable to the Propulsion Systems
subsequent to the date of the relevant Purchase Agreement as revised as of
the Delivery Date in accordance with Clause 4.1.2;
plus
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(v)
|
any
other amount due by the Buyer to the Seller pursuant to this AGTA, the
relevant Purchase Agreement and/or any other written agreement between the
Buyer and the Seller with respect to the
Aircraft.
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3.2
|
Aircraft Base
Price
|
|
3.2.1
|
The
Aircraft Base Price is as specified in the relevant Purchase
Agreement.
|
|
3.2.2
|
The
Final Price of each Aircraft shall be the sum
of:
|
|
|
(i)
|
the
Aircraft Base Price as revised as of the Delivery Date in accordance with
Clause 4.2; plus
|
|
|
(ii)
|
the
aggregate of all increases or decreases to the Aircraft Base Price as
agreed in any Specification Change Notice or MSCN or any part thereof
applicable to the Aircraft subsequent to the date of the relevant Purchase
Agreement as revised as of the Delivery Date in accordance with Clause
4.2; plus
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(iii)
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any
other amount due by the Buyer to the Seller pursuant to this
AGTA, the relevant Purchase Agreement and/or any other written
agreement between the Buyer and the Seller with respect to the
Aircraft.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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4.
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PRICE
REVISION
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Depending
on the Aircraft model, Clause 4.1 or Clause 4.2 shall apply.
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4.1
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Revision of the Airframe Base
Price and the Propulsion Systems Reference
Price
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4.1.1
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Revision of Airframe Base
Price
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The
Airframe Base Price is subject to revision up to and including the
Delivery Date in accordance with the Airframe Price Revision Formula as
set forth in the relevant Purchase
Agreement.
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4.1.2
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Revision of Propulsion Systems
Reference Price
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4.1.2.1
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The
Propulsion Systems Reference Price is subject to revision up to and
including the Delivery Date in accordance with the Propulsion Systems
Price Revision Formula as set forth in the relevant Purchase
Agreement.
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4.1.2.2
|
Modification of Propulsion
Systems Reference Price and Propulsion Systems Price Revision
Formula
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The
Propulsion Systems Reference Price, the prices of any equipment related to
the Propulsion Systems 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 automatically incorporated into this AGTA and the relevant
Purchase 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.
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4.2
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Revision of Aircraft Base
Price
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The
Aircraft Base Price is subject to revision up to and including the Delivery Date
in accordance with the Aircraft Price Revision Formula as set forth in the
relevant Purchase Agreement.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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5
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PAYMENTS
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5.1
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Seller's
Account
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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:
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Beneficiary
Name: AIRBUS
Account
identification: ***
with
:
***
or to
such other account as may be designated by the Seller.
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5.2
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Commitment
Fee
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|
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In
the event that the Buyer has already paid a commitment fee for the
Aircraft prior to the date of the relevant Purchase Agreement (the “Commitment Fee”), then
an amount equal to the Commitment Fee specified in US Dollars shall be
deducted from the Predelivery Payment due upon signature of the relevant
Purchase Agreement.
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5.3
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Predelivery
Payments
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5.3.1
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The
Buyer shall pay Predelivery Payments to the Seller calculated on the
predelivery payment reference price of each Aircraft. The predelivery
payment reference price shall be as set forth in the relevant Purchase
Agreement.
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5.3.2
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Such
Predelivery Payments shall be made in accordance with the schedule as set
forth in the relevant Purchase
Agreement
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5.3.3
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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 of such Aircraft when calculating
the Balance of Final Price or (ii) the obligation to pay to the Buyer
an amount equal to the Predelivery Payments pursuant to any other
provision of this AGTA and/or the relevant Purchase
Agreement.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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5.3.4
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If
any Predelivery Payment is not received within ten (10) calendar days of
the relevant due date specified in Clause 5.3.2 then in addition to
any other rights and remedies available to Seller, the Seller shall have
no obligation to deliver any or all of the Aircraft remaining to be
delivered under the relevant Purchase Agreement within their respective
Scheduled Delivery Month(s). 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 new Scheduled
Delivery Month(s) consistent with the Seller's other commitments and
production capabilities.
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5.3.5
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Specification
Change Notice Predelivery Payments
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The
Seller shall be entitled to request Predelivery Payments for each SCN
executed after signature of the relevant Purchase Agreement in amounts and
at dates set forth in such Purchase
Agreement.
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5.4
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Balance of Final
Price
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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.
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5.4.2
|
Upon
receipt of the Seller’s invoice, and immediately prior to Delivery, the
Buyer shall pay to the Seller the Balance of Final
Price.
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5.5
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Other
Charges
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|
|
If
not expressly stipulated otherwise any other charges due under this AGTA
and/or the relevant Purchase 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
ten (10) Business Days after the invoice
date.
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5.6
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Method of
Payment
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5.6.1
|
All
payments provided for in this AGTA and/or the relevant Purchase Agreement
shall be made in United States Dollars (USD) in immediately available
funds.
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5.6.2
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All
payments due to the Seller under this AGTA and/or the relevant Purchase
Agreement 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 hereunder shall be equal to
the full amounts expressed to be due to the Seller under this AGTA and/or
the relevant Purchase Agreement, 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.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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5.7
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Default
Interest
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If
any payment due to the Seller under this AGTA and/or the relevant Purchase
Agreement including but not limited to any Predelivery Payment, Commitment
Fee, 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 AGTA,
the relevant Purchase 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 *** (the “Default
Interest”).
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All
such interest shall be compounded monthly and calculated on the basis of
the actual number of days elapsed in the month assuming a
***.
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5.8
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Taxes
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5.8.1
|
The
amounts stated in this AGTA and/or the relevant Purchase Agreement to be
payable by the Buyer are exclusive of value added tax (“VAT”) chargeable
under the laws of the Delivery
Location.
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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 manufacture, assembly, sale and delivery under this AGTA and/or
the relevant Purchase Agreement of any of the Aircraft, services,
instructions and data delivered or furnished under this AGTA and/or the
relevant Purchase Agreement provided such charges have been promulgated
and are enforceable under the laws of the Delivery
Location.
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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 under this AGTA and/or the relevant Purchase
Agreement.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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For the
purposes of this Clause 5.8.3, “Buyer’s country” means the country or the
countries where (i) the headquarters of the Buyer are located, or (ii) the
paying entity of the Buyer is located, being understood that such entity can be
a branch depending on the Buyer, or (iii) the Aircraft is imported by the Buyer,
or (iv) the Aircraft is registered by the Buyer.
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5.9
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Proprietary
Interest
|
|
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The
Buyer shall not, by virtue of anything contained in this AGTA and/or the
relevant Purchase Agreement (including, without limitation, any
Predelivery Payments under this AGTA and/or the relevant Purchase
Agreement or any designation or identification by the Seller of a
particular aircraft as an Aircraft to which any of the provisions of this
AGTA and/or the relevant Purchase Agreement refers) acquire any
proprietary, insurable or other interest whatsoever in any Aircraft before
Delivery of and payment for such Aircraft, as provided in this AGTA and/or
the relevant Purchase Agreement.
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5.10
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Set-Off
|
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The
Seller may set-off any matured obligation owed by the Buyer to the Seller
and/or its Affiliates against any payment obligation (whether or not
matured) owed by the Seller to the Buyer, regardless of the place of
payment or currency (it being understood that if this obligation is
unascertainable it may be estimated and the set-off made in respect of
such estimate)
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5.11
|
Cross-Collateralisation
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5.11.1
|
The
Buyer hereby agrees that, notwithstanding any provision to the contrary in
this AGTA and/or the relevant Purchase Agreement, in the event that the
Buyer or any of its Affiliates should fail to make any material payment
owing under this AGTA and/or under any Purchase Agreement and/or under any
other agreement between the Buyer and the Seller and/or any of their
respective Affiliates (the “Other Agreement”), the
Seller may, unless otherwise mutually agreed upon by the Seller and the
Buyer:
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|
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(i)
|
withhold
payment to the Buyer or its Affiliates of any sums that may be due to or
claimed by the Buyer or its Affiliates from the Seller or its Affiliates
pursuant to this AGTA, any Purchase Agreement and/or any Other Agreement,
including Predelivery Payments, unless or until the default under this
AGTA, the relevant Purchase Agreement or the Other Agreement is cured or
remedied; and
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(ii)
|
apply
any amount of any Predelivery Payment it then holds under this AGTA and/or
any Purchase Agreement in respect of any of the Aircraft as well as any
other monies held pursuant to any Other Agreement (collectively the “Relevant Amounts”) in
such order as the Seller deems appropriate in satisfaction of any amounts
due and unpaid by the Buyer or its Affiliates and to compensate for any
losses and/or damages the Seller or its Affiliates may suffer as a result
of the Buyer’s or its Affiliates’ failure to make payments in a timely
manner under this AGTA, the relevant Purchase Agreement or any Other
Agreement. The Buyer acknowledges that the application of any of the
Relevant Amounts as aforesaid may result in the Buyer or its Affiliates
being in default (unless such default is otherwise cured or remedied) in
relation to the agreement in respect of which such Relevant Amounts were
originally granted or required to be paid, as the case may
be.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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The
rights granted to the Seller in the preceding paragraphs (i) and (ii) are
without prejudice and are in addition to and shall not be deemed a waiver of any
other rights and remedies the Seller or its Affiliates may have at law or under
this AGTA, any Purchase Agreement or any Other Agreement, including the right of
set-off.
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5.11.2
|
In
the event that the Seller applies any amount of any Predelivery Payment it
then holds under this AGTA and/or any Purchase Agreement in respect of any
of the Aircraft in satisfaction of the amount due and unpaid by the Buyer
or its Affiliates or to compensate for losses and/or damages to the Seller
or its Affiliates as a result of the Buyer’s or its Affiliates’ failure to
make payment in a timely manner under the AGTA, the relevant Purchase
Agreement or any Other Agreement, then the Seller shall notify the Buyer
to that effect. Within seven (7) calendar days of issuance of such
notification, the Buyer shall pay by wire transfer of funds immediately
available to the Seller the amount of the Predelivery Payment that has
been applied by the Seller as set forth
above.
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Failure
of the Buyer to pay such amount in full, shall entitle the Seller to (i) collect
interest on such unpaid amount in accordance with Clause 5.7 hereof from the
eighth (8th)
calendar day following the Seller’s written request to the Buyer for such
payment and (ii) treat such failure as an additional termination event for which
the Seller shall be entitled to the remedies available under Clause 20.2 and/or
the terms of the Purchase Agreement .
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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6
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MANUFACTURE
PROCEDURE – INSPECTION
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6.1.
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Manufacture
Procedure
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The
Airframe shall be manufactured in accordance with the relevant
requirements of the laws of the jurisdiction of incorporation of the
Seller or of its relevant Affiliate as enforced by the Aviation Authority
of such jurisdiction.
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6.2
|
Inspection
|
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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 and all
materials and parts obtained by the Seller for the manufacture of the
Airframe on the following terms and
conditions;
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(i)
|
any
inspection shall be made according to a procedure to be agreed upon with
the Buyer but shall be conducted pursuant to the Seller’s own system of
inspection as developed under the supervision of the relevant Aviation
Authority;
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(ii)
|
the
Buyer's Inspector(s) shall have access to such relevant technical data and
documents as is reasonably necessary for the purpose of the
inspection;
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(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 and shall take place in the presence of relevant inspection
department personnel of the Seller;
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|
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(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
AGTA and/or the relevant Purchase Agreement by the Seller or
any other work in progress at the Manufacture
Facilities.
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6.2.2
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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 Affiliates 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.
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6.3
|
Seller's Service for Buyer's
Inspector(s)
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For
the purpose of the inspections, and commencing with the date of the
relevant Purchase Agreement until the Delivery Date, the Seller shall
furnish without additional charge suitable space and office equipment
(including telephone, fax line and shared copy machine) in or conveniently
located with respect to the Delivery Location for the use of a reasonable
number of Buyer's Inspector(s) (such number not to exceed
eight).
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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7
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CERTIFICATION
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7.1
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Type
Certification
|
The
Aircraft has been type certificated under European Aviation Safety Agency (EASA)
procedures for 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 and its acceptance by the
Buyer’s Aviation Authorities (“CAAC”).
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7.2
|
Export Airworthiness
Certificate
|
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7.2.1
|
The
Aircraft shall be delivered to the Buyer with an Export Airworthiness
Certificate.
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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.
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7.2.3
|
The
Seller shall as far as practicable (but at 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.
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7.3
|
Costs of SCNs for
Certification
|
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7.3.1
|
The
costs of implementing the variation or modification referred to in
Clause 7.2.2 above shall be
|
|
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(i)
|
for
the account of the Seller if the Change in Law became effective prior to
the date of execution of the relevant Purchase
Agreement;
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(ii)
|
shared
equally between the Seller and the Buyer if the Change in Law became
effective after the date of execution of the relevant Purchase
Agreement.
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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 borne in accordance with such arrangements as may be made
separately between the Buyer and the Propulsion Systems
Manufacturer.
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7.4
|
Validation of the Export
Airworthiness Certificate
|
|
7.4.1
|
The
Seller shall endeavour to obtain the validation of the Export
Airworthiness Certificate by the Buyer's Aviation
Authority.
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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 by the Buyer. The Parties shall sign a Specification Change
Notice which specifies the effects, if any, upon the guaranteed
performances, weights, interchangeability, time of Delivery and price of
the Aircraft.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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8
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BUYER'S
TECHNICAL ACCEPTANCE
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8.1
|
Technical Acceptance
Process
|
8.1.1
|
|
Prior
to Delivery, each Aircraft shall undergo a technical acceptance process
proposed by the Seller (the "Technical Acceptance
Process"). Completion of the Technical Acceptance Process shall
demonstrate the satisfactory functioning of the Aircraft and shall be
deemed to demonstrate compliance with the
Specification.
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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 as is necessary to demonstrate the elimination of the
non-compliance.
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8.1.2
|
The
Technical Acceptance Process shall:
|
|
|
(i)
|
commence
on a date notified by the Seller to the Buyer by no less than
***notice;
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|
(ii)
|
take
place at the Delivery Location;
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|
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(iii)
|
be
carried out by the personnel of the
Seller;
|
|
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(iv)
|
include
a technical acceptance flight which shall not exceed a period of
***.
|
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8.2
|
Buyer's
Attendance
|
|
8.2.1
|
The
Buyer shall be entitled to elect to attend the Technical Acceptance
Process.
|
|
8.2.2
|
If
the Buyer elects to attend 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
***after its commencement for the A320 family model aircraft and within
*** after its commencement for the A330 and A340 family model
aircraft;
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(ii)
|
may
have a *** of the Buyer’s representatives (with no more than *** 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.
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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.
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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").
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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8.4
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Aircraft
Utilisation
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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.
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|
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However
the Seller shall not be authorised to use the Aircraft during more than
*** for any other purpose without the specific agreement of the
Buyer.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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9
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DELIVERY
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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 according to the delivery schedule
defined in the relevant Purchase
Agreement.
|
The
“Scheduled Delivery
Month” for each Aircraft shall be defined in the relevant Purchase
Agreement.
|
9.1.2
|
The
Seller shall give the Buyer at least *** prior written notice of the
anticipated date on which the Aircraft shall be Ready for Delivery.
Thereafter the Seller shall notify the Buyer of any change in such dates
necessitated by the conditions of manufacture or
flight.
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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 *** 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.
|
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9.2.2
|
The
Seller shall deliver and transfer good and marketable title to the
Aircraft free and clear of all liens and 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 as may reasonably be
requested by the Buyer. Title to, property in and risk of loss
of or damage to the Aircraft shall be transferred to the Buyer on
Delivery.
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9.2.3
|
Should
the Buyer fail to
|
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(i)
|
deliver
the signed Certificate of Acceptance to the Seller within the delivery
period as defined in Clause 9.2.1;
or
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(ii)
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pay
the Balance of the Final Price for the Aircraft to the Seller within the
above defined period
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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 AGTA and/or the
relevant Purchase Agreement, the Seller shall retain title to the Aircraft
but the Buyer shall thereafter bear all risk of loss of or damage to the
Aircraft and shall indemnify and hold the Seller harmless against any and
all costs (including but not limited to any parking, storage, and
insurance costs) and consequences resulting from such failure, it being
understood that the Seller shall be under no duty to store, park, insure,
or otherwise protect the Aircraft.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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9.3
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Fly
Away
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9.3.1
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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.
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9.3.2
|
All
expenses of, or connected with, flying the Aircraft from the Delivery
Location after Delivery shall be borne by the Buyer. The Buyer shall make
direct arrangements with the supplying companies for the fuel and oil
required for all post-Delivery
flights.
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10
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EXCUSABLE
DELAY
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10.1
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The
Buyer acknowledges that the Aircraft are to be manufactured by Seller in
performance of this AGTA and the relevant Purchase Agreement and that the
Scheduled Delivery Months specifically set forth in the relevant Purchase
Agreement 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
under this AGTA and/or under the relevant Purchase Agreement due to causes
beyond its control, and not occasioned by its fault or negligence
including (but without limitation) 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".
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10.2
|
If
an Excusable Delay occurs:
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(i)
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the
Seller shall notify the Buyer of such Excusable Delay as soon as
practicable after becoming aware of the
same;
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(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;
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(iii)
|
the
Seller shall not be deemed to be in default in the performance of its
obligations under this AGTA and/or the relevant Purchase Agreement as a
result of such Excusable Delay; and
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(iv)
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the
Seller shall as soon as practicable after the removal of the cause of the
delay resume performance of its obligations under this AGTA and/or the
relevant Purchase Agreement and in particular shall notify to the Buyer
the revised Scheduled Delivery
Month.
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10.3
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Termination on Excusable
Delay
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10.3.1
|
If
the Delivery of any Aircraft is delayed as a result of an Excusable Delay
for a period of more than *** after the last day of the Scheduled Delivery
Month then either Party may terminate the relevant Purchase Agreement and
the AGTA with respect to the Aircraft so affected by giving written notice
to the other Party within *** after the expiry of such *** provided that
the Buyer shall not be entitled to terminate the relevant Purchase
Agreement and the AGTA pursuant to this Clause if the Excusable Delay
results from a cause within its
control.
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10.3.2
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If
the Seller concludes that the Delivery of any Aircraft shall be delayed
for more than *** 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 the relevant Purchase Agreement and the AGTA with
respect to such Aircraft by giving written notice to the other Party
within *** after receipt by the Buyer of the notice of anticipated
delay.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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10.3.3
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If
the relevant Purchase Agreement and the AGTA shall not have been
terminated with respect to the delayed Aircraft during the *** 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.
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10.4
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Total Loss, Destruction or
Damage
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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 to this effect within *** of 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 a new 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 *** after the last day of the original Scheduled
Delivery Month then the relevant Purchase Agreement and the AGTA shall
terminate with respect to said Aircraft
unless:
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(i)
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the
Buyer notifies the Seller within *** 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
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(ii)
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the
Parties execute an amendment to the relevant Purchase Agreement recording
the variation in the Scheduled Delivery
Month;
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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.
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10.5
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Termination Rights
Exclusive
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In
the event that the relevant Purchase Agreement and the AGTA 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
with respect to such affected Aircraft and undelivered material, services,
data or other items applicable thereto 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.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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11
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NON-EXCUSABLE
DELAY
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11.1
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Liquidated
Damages
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Should
any of the Aircraft not be Ready for Delivery to the Buyer within thirty
(30) days 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 ***
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The
amount of such *** in respect of any one
Aircraft.
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The
Buyer's right to be paid damages in respect of the Aircraft is conditional
upon the Buyer submitting a claim in respect of such liquidated damages in
writing to the Seller not later than *** after the last day of the
Scheduled Delivery Month.
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11.2
|
Re-negotiation
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|
|
If,
as a result of Non-Excusable Delay, Delivery does not occur in the period
falling *** after the Delivery Period, the Buyer shall have the right
exercisable by written notice to the Seller given not less than *** nor
more than *** after the expiration of the *** 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 and the relevant Purchase
Agreement during the period of Non-Excusable
Delay.
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11.3
|
Termination
|
If, as a result of Non-Excusable
Delay, Delivery does not occur in the period falling *** 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 *** nor more than *** after
expiration of such *** to terminate the relevant Purchase Agreement and the AGTA
in respect of the affected Aircraft and neither Party shall have any claim
against the other in respect of such nondelivery except that the Seller shall
pay to the Buyer an amount equal to the Predelivery Payments received from the
Buyer under the relevant Purchase Agreement in respect of such affected Aircraft
and shall pay to the Buyer any amounts due pursuant to Clause 11.1. and the
relevant Purchase Agreement.
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11.4
|
Limitation of
Damages
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The
Buyer and the Seller agree that payment by the Seller of the amounts due
pursuant to Clause 11.1 and the relevant Purchase Agreement 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. The Seller shall not in any circumstances have any
liability whatsoever for Non-Excusable Delay other than as set forth in
this Clause 11 and the relevant Purchase
Agreement.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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12
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WARRANTIES
AND SERVICE LIFE POLICY
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This
Clause covers the terms and conditions of the warranty and service life
policy.
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12.1
|
Standard
Warranty
|
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12.1.1
|
Nature of
Warranty
|
|
|
For
the purpose of this AGTA and/or the relevant Purchase Agreement the term
"Warranted Part"
shall mean any Seller proprietary component, equipment, accessory or part,
which is installed on an Aircraft at Delivery thereof
and
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(a)
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which
is manufactured to the detailed design of the Seller or a subcontractor of
the Seller and
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(b)
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which
bears a part number of the Seller at the time of such
Delivery.
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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 each Warranted Part shall at Delivery to the Buyer be
free from defects:
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(i)
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in
material;
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(ii)
|
in
workmanship, including without limitation processes of manufacture
;
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(iii)
|
in
design (including without limitation the selection of materials) having
regard to the state of the art at the date of such design ;
and
|
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(iv)
|
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.
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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 installed on the Aircraft that is not a Warranted Part
except that:
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(i)
|
any
defect in the Seller's workmanship in respect of the installation of such
items in the Aircraft, including any failure by the Seller to conform to
the installation instructions of the manufacturers of such items that
invalidates any applicable warranty from such manufacturer, shall
constitute a defect in workmanship for the purpose of this Clause 12.1 and
be covered by the warranty set forth in Clause 12.1.1 (ii) ;
and
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(ii)
|
any
defect inherent in the Seller's design of the installation, in
consideration of the state of the art at the date of such design, which
impairs the use of such items shall constitute a defect in design for the
purpose of this Clause 12.1 and be covered by the warranty set forth in
Clause 12.1.1 (iii).
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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12.1.3
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Warranty
Period
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The
warranties set forth in Clauses 12.1.1 and 12.1.2 shall be limited to
those defects that become apparent within a certain period after the
Delivery of the affected Aircraft (the “Warranty Period”). Such
Warranty Period is as specified in the relevant Purchase
Agreement.
|
|
|
For
the avoidance of doubt, any Airworthiness Directive published during the
Warranty Period as a result of a defect in the Aircraft as defined in
clause 12.1.1 shall be covered under the standard
Warranty.
|
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12.1.4
|
Buyer's Remedy and Seller's
Obligation
|
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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, at the Seller's expense and option, the
repair, replacement or correction of any Warranted Part which is defective
(or to the supply of modification kits rectifying the defect), together
with a credit to the Buyer's account with the Seller of an amount equal to
the mutually agreed direct labor costs expended in performing the removal
and the reinstallation thereof on the Aircraft at the labor rate defined
in Clause 12.1.7.5.
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The
Seller may alternatively furnish to the Buyer’s account with the Seller a
credit equal to the price at which the Buyer is entitled to purchase a
replacement for the defective Warranted
Part.
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12.1.4.2
|
In
the event of a defect covered by Clauses 12.1.1 (iii), 12.1.1 (iv) and
12.1.2 (ii) becoming apparent within the Warranty Period, the Seller shall
also correct such defect in any Aircraft which has not yet been delivered
to the Buyer, provided, however,
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(i)
|
that
the Seller shall not be responsible nor deemed to be in default on account
of any delay in Delivery of any Aircraft or otherwise, in respect of the
performance of this AGTA or of the relevant Purchase Agreement due to the
Seller's undertaking to make such correction and provided
further
|
|
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(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.
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12.1.4.3
|
Cost of
inspection
|
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In
addition to the remedies set forth in Clauses 12.1.4.1 and 12.1.4.2, the
Seller shall reimburse the direct labor costs 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.
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|
The
above commitment is subject to the following
conditions:
|
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|
(i)
|
such
inspections are recommended by a Seller Service Bulletin to be performed
within the Warranty Period;
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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(ii)
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the
reimbursement shall not apply for any inspections performed as an
alternative to accomplishing corrective action as recommended by the
Seller when such corrective action has been made available to the Buyer
and such corrective action could have reasonably been accomplished by the
Buyer at the time such inspections are performed or
earlier,
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(iii)
|
the
labor rate for the reimbursement shall be labor rate defined in Clause
12.1.7.5, and
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(iv)
|
the
manhours used to determine such reimbursement shall not exceed the
Seller's estimate of the manhours required for such
inspections.
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12.1.5
|
Warranty Claim
Requirements
|
|
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The
Buyer’s remedy and the Seller’s obligation and liability under this Clause
12.1, with respect to any warranty claim submitted by the Buyer (each a
“Warranty Claim”)
are subject to the following
conditions:
|
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(i)
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the
defect having become apparent within the Warranty
Period;
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(ii)
|
the
Buyer having filed a Warranty Claim within 60 days of discovering the
defect;
|
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(iii)
|
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 in Clause 12.1.10 or from any act or omission of
any third party;
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(iv)
|
the
Seller having received a Warranty Claim complying with the provisions of
Clause 12.1.6 below.
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12.1.6
|
Warranty
Administration
|
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The
warranties set forth in Clause 12.1 shall be administered as hereinafter
provided for:
|
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12.1.6.1
|
Claim
Determination
|
|
|
Warranty
Claim determination by the Seller shall be reasonably based upon the claim
details, reports from the Seller Representatives, historical data logs,
inspection, tests, findings during repair, defect analysis and other
relevant documents.
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12.1.6.2
|
Transportation
Costs
|
|
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The
cost of transporting a Warranted Part claimed to be defective to the
facilities designated by the Seller and for the return therefrom of a
repaired or replaced Warranted Part shall be borne by the
Buyer.
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12.1.6.3
|
Return of an
Aircraft
|
|
|
If
the Buyer and the Seller mutually agree, prior to such return, that it is
necessary to return an Aircraft to the Seller for consideration of a
Warranty Claim, the Seller shall bear the direct costs of fuel and landing
fees to and from the Seller’s facilities for such return of the Aircraft.
The Buyer shall make its reasonable efforts to minimize the duration of
the corresponding flights.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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12.1.6.4
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On-Aircraft Work by the
Seller
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If
the Seller determines that a defect subject to this Clause 12.1 justifies
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 if the Seller accepts the return of an
Aircraft to perform or have performed such repair or correction, then the
labor costs for such on-Aircraft work shall be borne by the
Seller.
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The
condition which has to be fulfilled for on-Aircraft work by the Seller is
that, in the opinion of the Seller, the work necessitates the technical
expertise of the Seller as manufacturer of the
Aircraft.
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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.
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12.1.6.5
|
Warranty Claim
Substantiation
|
|
|
Each
Warranty Claim filed by the Buyer under this Clause 12.1, shall contain at
least the following data:
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a)
|
description
of defect and action taken, if any,
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b)
|
date
of incident and/or removal date,
|
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c)
|
description
of Warranted Part claimed to be defective,
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d)
|
part
number,
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e)
|
serial
number (if applicable),
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f)
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position
on Aircraft,
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g)
|
total
flying hours or calendar time, as applicable at the date of defect
appearance,
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h)
|
time
since last shop visit at the date of defect appearance,
|
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i)
|
Manufacturer
Serial Number of the Aircraft and/or its registration,
|
|
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j)
|
Aircraft
total flying hours and/or number of landings at the date of defect
appearance,
|
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k)
|
Warranty
Claim number,
|
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l)
|
date
of Warranty Claim,
|
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m)
|
Delivery
Date of Aircraft or Warranted Part to the
Buyer,
|
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|
Warranty
Claims are to be addressed as
follows:
|
|
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AIRBUS
|
|
|
CUSTOMER
SERVICES DIRECTORATE
|
|
|
WARRANTY
ADMINISTRATION
|
|
|
Rond-Point
Xxxxxxx Xxxxxxxx
|
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X.X.
00
|
|
|
X-00000
XXXXXXX XXXXX
|
|
|
XXXXXX
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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12.1.6.6
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Replacements
|
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Title
to and risk of loss of any Aircraft, component, accessory, equipment or
part returned by the Buyer to the Seller shall at all times remain with
the Buyer, except that:
|
|
|
(i)
|
risk
of loss (limited to cost of replacement and excluding in particular loss
of use) shall be with the Seller for as long as such Aircraft, component,
accessory, equipment or part shall be under the care, custody and control
of the Seller and;
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(ii)
|
title
to and risk of loss of a returned component, accessory, equipment or part
shall pass to the Seller upon shipment by the Seller to the Buyer of any
item furnished by the Seller to the Buyer as a replacement
therefor.
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Upon
the Seller's shipment to the Buyer of any replacement component,
accessory, equipment or part provided by the Seller pursuant to this
Clause 12.1, title to and risk of loss of such replacement component,
accessory, equipment or part shall pass to the
Buyer.
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12.1.6.7
|
Rejection
|
|
|
The
Seller shall provide reasonable written substantiation in case of
rejection of a Warranty Claim. In such event the Buyer shall refund to the
Seller reasonable inspection and test charges incurred in connection
therewith.
|
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12.1.6.8
|
Inspection
|
|
|
The
Seller shall have the right to inspect the affected Aircraft, documents
and other records relating thereto in the event of any Warranty Claim
under this Clause 12.1.
|
|
12.1.7
|
Inhouse
Warranty
|
|
12.1.7.1
|
Seller's
Authorization
|
|
|
The
Seller hereby authorizes the Buyer repair Warranted Parts (“Inhouse Warranty”)
subject to the terms of this
Clause 12.1.7.
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12.1.7.2
|
Conditions for Seller's
Authorization
|
|
|
The
Buyer shall be entitled to repair such Warranted Parts
only:
|
|
|
-
|
provided
the Buyer notifies the Seller Representatives 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 ***. 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;
|
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|
-
|
provided
adequate facilities and qualified personnel are available to the
Buyer;
|
|
|
-
|
provided
repairs are performed in accordance with the Seller's Technical Data or
written instructions; and
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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-
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only
to the extent specified by the Seller, or, in the absence of such
specification, to the extent reasonably necessary to correct the defect,
in accordance with the standards set forth in Clause
12.1.10.
|
|
12.1.7.3
|
Seller's
Rights
|
|
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The
Seller shall have the right to require the return of any Warranted Part,
or any part removed therefrom, which is claimed to be defective if, in the
judgment of the Seller, the nature of the claimed defect requires
technical investigation. Such return shall be subject to the provisions of
Clause 12.1.6.2. Furthermore, the Seller shall have the right to have a
Seller Representative present during the disassembly, inspection and
testing of any Warranted Part claimed to be defective, subject to such
presence being practical and not unduly delaying the
repair.
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12.1.7.4
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Inhouse Warranty Claim
Substantiation
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Claims
for Inhouse Warranty credit shall be filed within the same period set
forth in Clause 12.1.5 (ii) and shall contain the same information as that
required for Warranty Claims under Clause 12.1.6.5 and in addition shall
include:
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a)
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a
report of technical findings with respect to the
defect,
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b)
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for
parts required to remedy the defect:
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-
part numbers,
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serial numbers (if applicable),
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parts description,
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quantity of parts,
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unit price of parts,
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related Seller's or third party's invoices (if
applicable),
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-
total price of parts,
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c)
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detailed
number of labor hours,
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d)
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Inhouse
Warranty Labor Rate,
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e)
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total
claim value.
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12.1.7.5
|
Credit
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The
Buyer’s sole remedy and the Seller’s sole obligation and liability with
respect to Inhouse Warranty Claims shall be the credit to the Buyer’s
account of an amount equal to the mutually agreed direct labor costs
expended in performing the repair of a Warranted Part and to the direct
costs of materials incorporated in said repair determined as set forth
below:
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(a)
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to
determine direct labor costs, only manhours spent on removal from the
Aircraft, disassembly, inspection, repair, reassembly, final inspection
and test of the Warranted Part and reinstallation thereof on the Aircraft
shall be counted. Any manhours required for maintenance work concurrently
being carried out on the Aircraft or Warranted Part shall not be
included.
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(b)
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The
manhours counted as set forth above shall be multiplied by an agreed labor
rate of *** (“Inhouse
Warranty Labour Rate”) which is deemed to represent the Buyer’s
composite labor rate meaning the average hourly rate (excluding all fringe
benefits, premium time allowances, social security charges, business taxes
and the like) paid to the Buyer’s employees whose jobs are directly
related to the performance of the
repair.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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Private
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The
Inhouse Warranty Labor Rate is subject to annual adjustment *** defined in
the Seller’s Price Revision Formula set forth in Exhibit C to this
AGTA.
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(c)
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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.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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Private
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12.1.7.6
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Limitation
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The
Buyer shall in no event be credited for repair costs (including labor and
material) for any Warranted Part in excess of *** of the Seller’s current
catalogue price for a replacement of such defective Warranted
Part.
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12.1.7.7
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Scrapped
Material
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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 *** after the date of completion of repair or *** after
submission of a claim for Inhouse Warranty credit relating thereto,
whichever is longer. Such parts shall be returned to the Seller within ***
of receipt of the Seller's request to that
effect.
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Notwithstanding
the foregoing, the Buyer may scrap any such defective parts, which are
beyond economic repair and not required for technical evaluation locally,
with the agreement of the Seller
Representative(s).
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Scrapped
Warranted Parts shall be evidenced by a record of scrapped material
certified by an authorized representative of the Buyer and shall be kept
in the Buyer’s file for a least the duration of the applicable Warranty
Period.
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12.1.8
|
Standard Warranty in case of
Pooling or Leasing
Arrangements
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Without
prejudice to Clause 21.1, 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 airline 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.
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12.1.9
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Warranty for Corrected,
Replaced or Repaired Warranted
Parts
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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, repaired or replacement Warranted Part,
whichever the case may be, shall be the remaining portion of the original
warranty or twelve (12) months, whichever is
longer.
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If
a defect is attributable to a defective repair or replacement by the
Buyer, a Warranty Claim with respect to such defect shall be rejected,
notwithstanding any subsequent correction or repair, and shall immediately
terminate the remaining warranties under this Clause 12.1 in respect of
the affected Warranted Part.
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12.1.10
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Accepted Industry Standard
Practices - Normal Wear and
Tear
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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 Data and any other instructions issued
by the Seller, the Suppliers and the Propulsion Systems Manufacturer and
all applicable rules, regulations and directives of the relevant Aviation
Authorities.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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Private
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The
Seller's liability under this Clause 12.1 shall not extend to normal wear
and tear nor to:
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(i)
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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 ;
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(ii)
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any
Aircraft or component, equipment, accessory or part thereof which has been
operated in a damaged state ;
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(iii)
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any
component, equipment, accessory and part from which the trademark, name,
part or serial number or other identification marks have been
removed;
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12.1.11
|
Limitation of
liability
|
|
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THE
SELLER SHALL NOT BE LIABLE FOR, AND THE BUYER SHALL INDEMNIFY THE SELLER
AGAINST, ANY CLAIMS FROM ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT OR
NON-CONFORMITY OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY
REPAIR OF ANY WARRANTED PART UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE
12.1 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12,
WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON
ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE
BUYER.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
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CT0803291
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Private
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12.2
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Seller
Service Life Policy
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12.2.1
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In
addition to the warranties set forth in Clause 12.1, the Seller further
agrees that should a Failure occur in any Item (as these terms are defined
herebelow) that has not suffered from an extrinsic force, then, subject to
the general conditions and limitations set forth in Clause 12.2.4, the
provisions of this Clause 12.2 shall
apply.
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For
the purposes of this Clause 12.2:
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(i)
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"Item" means any item
listed in Exhibit “F”;
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(ii)
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"Failure" means a
breakage or defect that can reasonably be expected to occur on a fleetwide
basis and which materially impairs the utility of the
Item.
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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 was originally installed has completed a certain amount of
flight hours or flight cycles or within a period as specified in the
relevant Purchase Agreement, whichever shall first occur, the Seller shall
at its 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
|
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12.2.2.2
|
replace
such Item.
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12.2.3
|
Seller's Participation in the
Costs
|
|
|
Subject
to the general conditions and limitations set forth in Clause 12.2.4, any
part or Item that the Seller is required to furnish to the Buyer under
this Service Life Policy in connection with the correction or replacement
of an Item shall be furnished to the Buyer at the Seller’s then current
sales price therefor, less the Seller's financial participation determined
in accordance with the following
formula:
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|
|
***
|
|
12.2.4
|
General Conditions and
Limitations
|
|
12.2.4.1
|
The
undertakings set forth 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 remedies and the Seller's obligations and liabilities 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 with respect
to each Item adequate to enable the Seller to determine whether the
alleged Failure is covered by this Service Life Policy and, if so, to
define the portion of the costs to be borne by the Seller in accordance
with Clause 12.2.3;
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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Clause
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CT0803291
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Private
& Confidential
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(ii)
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the
Buyer shall keep the Seller informed of any significant incidents relating
to an Aircraft howsoever occurring or
recorded;
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|
(iii)
|
the
Buyer shall comply with the conditions of Clause
12.1.10;
|
|
(iv)
|
the
Buyer shall implement 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 and shall be carried out at the Buyer's expense.
Reports relating thereto shall be regularly furnished to the
Seller;
|
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(v)
|
the
Buyer shall report any breakage or defect in writing to the Seller within
*** after such breakage or defect becomes apparent, whether or not said
breakage or defect can reasonably be expected to occur in any other
aircraft, and the Buyer shall have provided to the Seller sufficient
detail on the breakage or defect to enable the Seller to determine whether
said breakage or defect is subject to this Service Life
Policy.
|
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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 of the Seller having 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 a pro
rata formula. 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 incorporating such modification in the relevant
Aircraft, as promulgated by the Seller and in accordance with the Seller's
instructions, within a reasonable
time.
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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 hereunder is to furnish only those corrections to the
Items or provide replacements therefor as provided for in this Clause
12.2.
|
|
|
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 *** limited to the amount the Buyer reasonably expends in
procuring a correction or replacement for any Item that is the subject of
a Failure covered by this Service Life Policy and to which such
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.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
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CT0803291
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Private
& Confidential
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12.3
|
Supplier
Warranties and Service Life
Policies
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|
|
Prior
to the Delivery of the first Aircraft to be delivered under the relevant
Purchase Agreement, the Seller shall provide the Buyer with such
warranties and service life policies that the Seller has obtained pursuant
to the Supplier Product Support
Agreements.
|
|
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 and for 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.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
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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 except for transportation of the Seller's personnel to the
Buyer's facilities, promptly conduct or have conducted an investigation
and analysis of such problem to determine, if possible, the cause or
causes of the problem and to recommend such corrective action as may be
feasible. 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.
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|
|
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 towards 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.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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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 AGTA and the relevant Purchase 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 (AS DEFINED BELOW
FOR THE PURPOSES OF THIS CLAUSE) 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, CONTRACT OR
OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OF ANY KIND, IN
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR
SERVICES DELIVERED UNDER THIS AGTA AND THE RELEVANT PURCHASE AGREEMENT,
INCLUDING BUT NOT LIMITED TO:
|
|
|
A.
|
ANY
WARRANTY AGAINST HIDDEN DEFECTS;
|
|
|
B.
|
ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
|
|
|
C.
|
ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OR TRADE;
|
|
|
D.
|
ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN
TORT, WHETHER OR NOT ARISING FROM THE SELLER’S NEGLIGENCE, ACTUAL OR
IMPUTED; AND
|
|
|
E.
|
ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR
SERVICES DELIVERED UNDER THIS AGTA AND THE RELEVANT PURCHASE AGREEMENT,
FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES,
|
|
|
PROVIDED
THAT IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY
REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE THE REMAINDER OF THIS
AGTA AND THE RELEVANT
PURCHASE AGREEMENT SHALL REMAIN IN FULL FORCE AND
EFFECT.
|
|
|
FOR
THE PURPOSES OF THIS CLAUSE 12.5, THE “SELLER” SHALL BE UNDERSTOOD TO
INCLUDE THE SELLER, ITS AFFILIATES AND ANY OF ITS SUPPLIERS AND
SUBCONTRACTORS AND ITS AFFILIATES.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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12.6
|
Duplicate
Remedies
|
|
|
The
Seller shall not be obliged to provide any remedy that duplicates any
other remedy available to the Buyer in respect of the same defect under
Clauses 12.1 and 12.2 as such Clauses may be amended, complemented or
supplemented by other contractual agreements, including a Purchase
Agreement, or by other Clauses of this
AGTA.
|
|
12.7
|
Reserved
|
|
12.8
|
Disclosure
to Third Party Entity
|
|
|
In
the event of the Buyer intending to designate a third party entity (a
“Third Party Entity”) to administrate this Clause 12, the Buyer shall
notify the Seller of such intention prior to any disclosure of this Clause
to the selected Third Party Entity and shall cause such Third Party Entity
to enter into a confidentiality agreement and or any other relevant
documentation with the Seller solely for the purpose of administrating
this Clause 12.
|
|
12.9
|
Transferability
|
|
|
Notwithstanding
the provisions of Clause 12.1.8 hereof and without prejudice to Clause
21.1, the Buyer's rights under this Clause 12 shall not be assigned, sold,
leased, transferred, novated or otherwise alienated by operation of law or
otherwise, without the Seller's prior written consent thereto, which shall
not be unreasonably withheld.
|
|
|
Any
unauthorized assignment, sale, lease, transfer, novation or other
alienation of the Buyer's rights under this Clause 12 shall as to the
particular Aircraft involved, immediately void this Clause 12 in its
entirety.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
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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
from and against any damages, costs or expenses including legal costs
(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 Airframe (or any
part or software installed therein at Delivery)
of:
|
|
|
(i)
|
any
British, French, 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)
|
from
the time of design of such Airframe, accessory, equipment or part and
until infringement claims are resolved, 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)
|
from
such time of design and until infringement claims are resolved, 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");
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and
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(iii)
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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.
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13.1.2
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Clause 13.1.1
shall not apply to
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(i)
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Buyer
Furnished Equipment or Propulsion Systems;
or
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(ii)
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parts
not supplied pursuant to a Supplier Product Support Agreement ;
or
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(iii)
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software
not created by the Seller.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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13.1.3
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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), the Seller shall at its
expense either:
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(i)
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procure
for the Buyer the right to use the same free of charge to the Buyer;
or
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(ii)
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replace
the infringing part of the Aircraft as soon as possible with a
non-infringing substitute complying in all other respects with the
requirements of the relevant Purchase
Agreement.
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13.2
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Administration of Patent and
Copyright Indemnity Claims
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13.2.1
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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:
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(i)
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forthwith
notify the Seller giving particulars
thereof;
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(ii)
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furnish
to the Seller all data, papers and records within the Buyer's control or
possession relating to such patent or
claim;
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(iii)
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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 defense 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;
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(iv)
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fully
co-operate with, and render all such assistance to, the Seller as may be
pertinent to the defense or denial of the suit or
claim;
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(v)
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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.
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13.2.2
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The
Seller shall be entitled either in its own name or on behalf of the Buyer
to conduct negotiations with the party or parties alleging infringement
and may assume and conduct the defense or settlement of any suit or claim
in the manner which, in the Seller's opinion, it deems
proper.
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13.2.3
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The Seller's liability under this
AGTA and/or the relevant Purchase Agreement 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.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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14.
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TECHNICAL
DATA AND SOFTWARE SERVICES
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14.1
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Scope
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This
Clause 14 covers the terms and conditions for the supply of technical data
(“hereinafter “Technical
Data”) and software services described hereunder (hereinafter
“Software
Services”) to support the Aircraft
operation.
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14.1.1
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The
Technical Data shall be supplied in the English language using the
aeronautical terminology in common
use.
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14.1.2
|
Range,
form, type, format, quantity and delivery schedule of the Technical Data
to be provided under this AGTA are outlined in Exhibit
G.
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14.2
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Aircraft
Identification for Technical Data
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14.2.1
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For
those Technical Data that are customized to the Buyer’s Aircraft, 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.
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14.2.2
|
The
sequence shall not be interrupted unless two (2) different Propulsion
Systems or two (2) different Aircraft models are
selected.
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14.2.3
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The
Buyer shall indicate to the Seller the Fleet Serial Number allocated to
each Aircraft corresponding to the delivery schedule set forth in the
relevant Purchase Agreement within *** after execution of such relevant
Purchase Agreement. Neither the designation of such Fleet Serial Numbers
nor the subsequent allocation of the Fleet Serial Numbers to Manufacturer
Serial Numbers for the purpose of producing certain customized Technical
Data shall constitute any property, insurable or other interest of the
Buyer in any Aircraft prior to the Delivery of such Aircraft as provided
for in this AGTA and the relevant Purchase
Agreement.
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The customized Technical Data that are
affected thereby are the following:
- Aircraft
Maintenance Manual,
- Illustrated
Parts Catalog,
- Trouble
Shooting Manual,
- Aircraft
Wiring Manual,
- Aircraft
Schematics Manual,
- Aircraft
Wiring Lists.
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14.3
|
Integration
of Equipment Data
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14.3.1
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Supplier
Equipment
|
Information,
including revisions, relating to Supplier equipment that is installed on the
Aircraft at Delivery or through Airbus Service Bulletins thereafter shall be
introduced into the customized Technical Data to the extent necessary for the
comprehension of the affected systems, at no additional charge to the
Buyer.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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14.3.2
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Buyer Furnished
Equipment
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14.3.2.1
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The
Seller shall introduce data related to Buyer Furnished Equipment, for
equipment that is installed on the Aircraft by the Seller (hereinafter
“BFE Data”) into
the customized Technical Data, at no additional charge to the Buyer for
the initial issue of the Technical Data provided at first Aircraft
Delivery under the relevant Purchase Agreement, provided such BFE Data is
provided in accordance with the conditions set forth in Clauses 14.3.2.2
through 14.3.2.6.
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14.3.2.2
|
The
Buyer shall supply the BFE Data to the Seller at least six (6) months
prior to the Scheduled Delivery Month of the first Aircraft to be
delivered under the relevant Purchase
Agreement.
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14.3.2.3
|
The
BFE Data shall be supplied in English and shall be established in
compliance with the then applicable revision of ATA iSpecification 2200
(iSpec 2200), Information Standards for Aviation
Maintenance.
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14.3.2.4
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The
Buyer and the Seller shall agree on the requirements for the provision to
the Seller of BFE Data for “on-aircraft maintenance”, such as but not
limited to timeframe, media and format in which the BFE Data shall be
supplied to the Seller, in order to manage the BFE Data integration
process in an efficient, expeditious and economic manner.
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14.3.2.5
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The
BFE Data shall be delivered in digital format (SGML) and/or in Portable
Document Format (PDF), as agreed between the Buyer and the
Seller.
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14.3.2.6
|
***
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14.4
|
Supply
|
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14.4.1
|
Technical
Data shall be supplied on-line and/or off-line, as set forth in Exhibit
G.
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14.4.2
|
The
Buyer shall not receive any credit or compensation for any unused or only
partially used Technical Data supplied pursuant to this Clause
14.
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14.4.3
|
Delivery
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14.4.3.1
|
For
Technical Data provided off-line, such Technical Data and corresponding
revisions shall be sent to up to two (2) addresses as indicated
by the Buyer.
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14.4.3.2
|
Technical
Data provided off-line shall be delivered by the Seller at the Buyer’s
named place of destination under DDU conditions. The term Delivery Duty
Unpaid (DDU) is defined by publication n° 560 of the
International Chamber of Commerce, published in January
2000.
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14.4.3.3
|
The
Technical Data shall be delivered according to a mutually agreed schedule
to correspond with the Deliveries of Aircraft. The Buyer shall provide no
less than *** notice when requesting a change to such delivery
schedule.
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14.4.4
|
It
shall be the responsibility of the Buyer to coordinate and satisfy local
Aviation Authorities' requirements with respect to Technical Data.
Reasonable quantities of such Technical Data shall be supplied by the
Seller at no charge to the Buyer at the Buyer’s named place of
destination.
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Notwithstanding
the foregoing, and in agreement with the relevant Aviation Authorities,
preference shall be given to the on-line access to such Buyer’s Technical
Data through the Airbus customer portal
“AirbusWorld”.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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14.5
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Revision
Service
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For
each firmly ordered Aircraft covered under this AGTA and the relevant
Purchase Agreement, revision service for the Technical Data shall be
provided on a *** for a period specified in the relevant Purchase
Agreement (each a “Revision Service
Period”).
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Thereafter revision service shall be
provided in accordance with the terms and conditions set forth in the Seller’s
then current Customer Services Catalog.
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14.6
|
Service
Bulletins (SB) Incorporation
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|
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During
any Revision Service Period and upon the Buyer’s request, which shall be
made within two years after issuance of the applicable Service Bulletin,
Seller Service Bulletin information shall be incorporated into the
Technical Data, provided that the Buyer notifies the Seller through the
relevant AirbusWorld on-line Service Bulletin Reporting application that
it intends to accomplish such Service Bulletin. The split effectivity for
the corresponding Service Bulletin shall remain in the Technical Data
until notification from the Buyer that embodiment has been completed on
all of the Buyer's Aircraft. The foregoing is applicable for Technical
Data relating to maintenance only. For operational Technical Data either
the pre or post Service Bulletin status shall be
shown.
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14.7
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Technical
Data Familiarization
|
The
Seller shall provide Technical Data familiarization training at the Seller’s or
the Buyer’s facilities as set forth in the relevant Purchase Agreement. The
basic familiarization course is tailored for maintenance and engineering
personnel.
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14.8
|
***
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14.9
|
AirN@v
Family products
|
|
14.9.1
|
The
Technical Data listed herebelow are provided on DVD and include integrated
software (hereinafter together referred to as “AirN@v
Family”).
|
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14.9.2
|
The
AirN@v Family covers several Technical Data domains, reflected by the
following AirN@v Family products:
|
-
AirN@v / Maintenance,
-
AirN@v / Planning,
-
AirN@v / Repair,
- AirN@v
/ Workshop,
- AirN@v
/ Associated Data,
- AirN@v
/ Engineering.
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14.9.3
|
Further
details on the Technical Data included in such products are set forth in
Exhibit “G”.
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14.9.4
|
The
licensing conditions for the use of AirN@v Family integrated software
shall be as set forth in Part 1 of Exhibit I to the AGTA, “End-User License Agreement for
Airbus Software”.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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14.9.5
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The
revision service and the license to use AirN@v Family products shall be
granted free of charge for the duration of the corresponding Revision
Service Period. At the end of such Revision Service Period, the yearly
revision service for AirN@v Family products and the associated license fee
shall be provided to the Buyer under the commercial conditions set forth
in the Seller’s then current Customer Services
Catalog.
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14.10
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On-Line
Technical Data
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14.10.1
|
The
Technical Data defined in Exhibit “G” as being provided on-line shall be
made available to the Buyer through the Airbus customer portal AirbusWorld
(“AirbusWorld”), as further described in Part 2 of Exhibit I to the
AGTA.
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14.10.2
|
Such
provision shall be at no cost for the duration of the corresponding
Revision Service Period.
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14.10.3
|
Access
to AirbusWorld shall be subject to the “General Terms and Conditions of
Access to and Use of AirbusWorld” (hereinafter the “GTC”), as set forth in
Part 4 of Exhibit I to this AGTA.
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14.10.4
|
The
list of the Technical Data provided on-line may be extended from time to
time.
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|
For
any Technical Data which is or becomes available on-line, the Seller
reserves the right to suppress other formats for the concerned Technical
Data.
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14.10.5
|
Access
to AirbusWorld shall be *** of the Buyer’s users (including ***) for the
Technical Data related to the Aircraft which shall be operated by the
Buyer.
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14.10.6
|
For
the sake of clarification, it is hereby specified that Technical Data
accessed through AirbusWorld - which access shall be covered by the terms
and conditions set forth in the GTC – shall remain subject to the
conditions of this Clause 14.
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In
addition, should AirbusWorld provide access to Technical Data in software
format, the use of such software shall be further subject to the
conditions of Part 1 of Exhibit I to the
AGTA.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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14.11
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Waiver,
Release and Renunciation
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14.11.1
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The
Seller warrants that the Technical Data are prepared in accordance with
the state of art at the date of their conception. Should any Technical
Data 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 correct such Technical Data. Notwithstanding
the above, no warranties of any kind shall be given for the Customer
Originated Changes, as set forth in Clause
14.8.
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THE
WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER (AS DEFINED BELOW
FOR THE PURPOSES OF THIS CLAUSE) 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, CONTRACT OR
OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OF ANY KIND, IN
ANY TECHNICAL DATA OR SERVICES DELIVERED UNDER THIS AGTA AND THE RELEVANT
PURCHASE AGREEMENT, INCLUDING BUT NOT LIMITED
TO:
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|
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A
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ANY
WARRANTY AGAINST HIDDEN DEFECTS;
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B
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ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
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C
|
ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OR TRADE;
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|
D
|
ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN
TORT, WHETHER OR NOT ARISING FROM THE SELLER’S NEGLIGENCE, ACTUAL OR
IMPUTED; AND
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E
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ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR
SERVICES DELIVERED UNDER THIS AGTA AND THE RELEVANT PURCHASE AGREEMENT,
FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES;
|
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PROVIDED
THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY
REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS
AGTA AND THE RELEVANT PURCHASE AGREEMENT SHALL REMAIN IN FULL FORCE AND
EFFECT.
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FOR
THE PURPOSES OF THIS CLAUSE 14, THE “SELLER” SHALL BE UNDERSTOOD TO
INCLUDE THE SELLER, ANY OF ITS SUPPLIERS, SUBCONTRACTORS AND
AFFILIATES.
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14.12
|
Proprietary
Rights
|
|
14.12.1
|
All
proprietary rights, including but not limited to patent, design and
copyrights, relating to Technical Data shall remain with the Seller and/or
its Affiliates as the case may be.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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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.
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14.12.2
|
Whenever
this AGTA and the relevant Purchase Agreement and/or any Technical Data
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 shall not be construed as any further right for the Buyer to design
or manufacture any Aircraft or part thereof or spare
part.
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14.13
|
Performance
Engineer's Program
|
|
14.13.1
|
In
addition to the Technical Data provided under Clause 14, the Seller shall
provide to the Buyer Software Services, which shall consist of the
Performance Engineer's Programs (“PEP”) for the Aircraft type covered
under the relevant Purchase Agreement. Such PEP is composed of software
components and databases and its use is subject to the license conditions
set forth in Part 1 of Exhibit I to the AGTA “End-User License Agreement
for Airbus Software”.
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14.13.2
|
Use
of the PEP shall be limited to *** copy to be used on the Buyer’s
computers for the purpose of computing performance engineering data. The
PEP is intended for use on ground only and shall not be embarked on board
the Aircraft.
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14.13.3
|
The
license to use the PEP and the revision service shall be provided on a
free of charge basis for the duration of a period specified in the
relevant Purchase Agreement (the "PEP Revision Service
Period").
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14.13.4
|
At
the end of such PEP Revision Service Period, the PEP shall be provided to
the Buyer at the standard commercial conditions set forth in the Seller’s
then current Customer Services
Catalog.
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14.14
|
Future
Developments
|
|
|
The
Seller continuously monitors technological developments and applies them
to Technical Data, document and information systems’ functionalities,
production and methods of
transmission.
|
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|
The
Seller shall implement and the Buyer shall accept such new developments,
it being understood that the Buyer shall be informed in due time by the
Seller of such new developments and their application and of the date by
which the same shall be implemented by the
Seller.
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14.15
|
Confidentiality
|
|
14.15.1
|
This
Clause, the Technical Data, the Software Services and their content are
designated as confidential. All such Technical Data and Software Services
are provided 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 save as permitted therein or pursuant to any
government or legal requirement imposed upon the
Buyer.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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14.15.2
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In
the event of the Seller authorizing the disclosure of this Clause or any
Technical Data or Software Services to third parties either under this
AGTA and the relevant Purchase Agreement or by an express prior written
authorization and specifically, in the event of the Buyer intending to
designate a maintenance and repair organization or a third party to
perform the maintenance of the Aircraft or to perform data processing on
its behalf (each a “Third
Party”), the Buyer shall notify the Seller of such intention prior
to any disclosure of this Clause and/or the Technical Data and/or the
Software Services to such Third
Party.
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The
Buyer hereby undertakes to cause such Third Party to agree to be bound by
the conditions and restrictions set forth in this Clause 14 with respect
to the disclosed Clause, Technical Data or Software Services and shall in
particular cause such Third Party to enter into a confidentiality
agreement with the Seller and appropriate licensing conditions, and to
commit to use the Technical Data solely for the purpose of maintaining the
Buyer’s Aircraft and the Software Services exclusively for processing the
Buyer’s data.
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14.16
|
Transferability
|
|
|
Without
prejudice to Clause 21.1, the Buyer's rights under this Clause 14 may not
be assigned, sold, transferred, novated or otherwise alienated by
operation of law or otherwise, without the Seller's prior written
consent.
|
|
|
Any
transfer in violation of this Clause 14.16 shall, as to the
particular Aircraft involved, void the rights and warranties of the Buyer
under this Clause 14 and any and all other warranties that might arise
under or be implied in law.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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15
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SELLER
REPRESENTATIVE SERVICES
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|
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The
Seller shall provide *** the Buyer the services described in this Clause
15, at the Buyer’s main base or at other locations to be mutually
agreed.
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15.1
|
Customer
Support Representative(s)
|
|
15.1.1
|
The
Seller shall provide *** the services of Seller customer support
representative(s), as defined in the relevant Purchase Agreement (each a
"Seller
Representative"), at the Buyer’s main base or such other locations
as the Parties may agree.
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15.1.2
|
In
providing the services as described hereabove, any Seller Representatives,
or any Seller employee(s) providing services to the Buyer hereunder, are
deemed to be acting in an advisory capacity only and at no time shall they
be deemed to be acting as Buyer's employees or agents, either directly or
indirectly.
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15.1.3
|
The
Seller shall provide to the Buyer an annual written accounting of the
consumed man-months and any remaining man-month balance from the allowance
defined in the relevant Purchase Agreement. Such accounting
shall be deemed final and accepted by the Buyer unless the Seller receives
written objection from the Buyer within thirty (30) calendar days of
receipt of such accounting.
|
|
15.1.4
|
In
the event of a need for Aircraft On Ground (“AOG”) technical assistance
after the end of the assignment referred to in the relevant Purchase
Agreement, the Buyer shall have non-exclusive access
to:
|
|
|
a)
|
AIRTAC
(Airbus Technical AOG Center);
|
|
b)
|
The
Seller Representative network closest to the Buyer's main base. A list of
contacts of the Seller Representatives closest to the Buyer's main base
shall be provided to the
Buyer.
|
|
|
As
a matter of reciprocity, the Buyer shall authorize the Seller
Representative(s), during his/their assignment at the Buyer’s, to provide
similar assistance to another
airline.
|
|
15.1.5
|
Should
the Buyer request Seller Representative services exceeding the allocation
specified in the relevant Purchase Agreement, the Seller may provide such
additional services subject to terms and conditions to be mutually
agreed.
|
|
15.1.6
|
The
Seller shall cause similar services to be provided by representatives of
the Propulsion Systems Manufacturer and Suppliers, when necessary and
applicable.
|
|
15.2
|
Buyer's
Support
|
|
15.2.1
|
From
the date of arrival of the first Seller Representative and for the
duration of the assignment, the Buyer shall provide *** a suitable
lockable office, conveniently located with respect to the Buyer's
maintenance facilities, with complete office furniture and equipment
including telephone, internet, email and facsimile connections for the
sole use of the Seller Representative(s). *** upon receipt by the Seller
of all relevant justifications,
***.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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15.2.2
|
The
Buyer shall reimburse the Seller the costs for the initial and termination
assignment travel of the Seller Representatives of *** confirmed ticket,
Business Class, to and from their place of assignment and Toulouse,
France.
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|
15.2.3
|
The
Buyer shall also reimburse the Seller the costs for air transportation for
the annual vacation of the Seller Representatives to and from their place
of assignment and Toulouse, France.
|
|
15.2.4
|
Should
the Buyer request any Seller Representative referred to in Clause 15.1
above to travel on business to a city other than his usual place of
assignment, the Buyer shall be responsible for all related transportation
costs and expenses.
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15.2.5
|
Absence
of an assigned Seller Representative during normal statutory vacation
periods are covered by the Seller Representatives as defined in Clause
15.1.4 and as such are accounted against the total allocation provided in
the relevant Purchase Agreement.
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15.2.6
|
The
Buyer shall assist the Seller in obtaining from the civil authorities of
the Buyer's country those documents that are necessary to permit the
Seller Representative to live and work in the Buyer's country. Failure of
the Seller to obtain the necessary documents shall relieve the Seller of
any obligation to the Buyer under the provisions of Clause
15.1.
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15.2.7
|
The
Buyer shall reimburse to the Seller charges, taxes, duties, imposts or
levies of any kind whatsoever, imposed by the authorities of the Buyer's
country upon:
|
|
|
-
|
the
entry into or exit from the Buyer's country of the Seller Representatives
and their families,
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|
|
-
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the
entry into or the exit from the Buyer's country of the Seller
Representatives and their families' personal
property,
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-
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the
entry into or the exit from the Buyer's country of the Seller's property,
for the purpose of providing the Seller Representatives
services.
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15.3
|
Withdrawal
of the Seller Representative
|
|
|
The
Seller shall have the right to withdraw 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.
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15.4
|
Indemnities
|
|
|
INDEMNIFICATION
PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE SET FORTH IN CLAUSE
19.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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16
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TRAINING
SUPPORT AND SERVICES
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16.1
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General
|
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16.1.1
|
This
Clause 16 sets forth the terms and conditions for the supply of training
support and services for the Buyer's personnel to support the Aircraft
operation.
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16.1.2
|
The
range, quantity and validity of training to be provided free of charge
under this AGTA and the relevant Purchase Agreement are covered in
Appendix A to this Clause 16.
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16.1.3
|
Scheduling
of training courses covered in Appendix A shall be mutually agreed during
a training conference (the “Training Conference”)
that shall be held no later than *** prior to Delivery of the first
Aircraft under the relevant Purchase
Agreement.
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16.2
|
Training
Location
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16.2.1
|
The
Seller shall provide training at its training center in Blagnac, France,
and/or in Hamburg, Germany, or shall designate an affiliated training
center in Miami, U.S.A., or Beijing, China (individually a “Seller’s Training
Center” and collectively the “Seller’s Training
Centers”).
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16.2.2
|
If
the unavailability of facilities or scheduling difficulties make training
by the Seller at any Seller’s Training Center impractical, the Seller
shall ensure that the Buyer is provided with such training at another
location designated by the Seller.
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16.2.3.1
|
Upon
the Buyer's request, the Seller may also provide certain training at a
location other than the Seller's Training Centers, including one of the
Buyer's bases, if and when practicable for the Seller, under terms and
conditions to be mutually agreed upon. In such event, all additional
charges listed in Clauses 16.5.2 and 16.5.3 shall be borne by the
Buyer.
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16.2.3.2
|
If
the Buyer requests training at a location as indicated in Clause 16.2.3.1
and requires such training to be an Airbus approved course, the Buyer
undertakes that the training facilities shall be approved prior to the
performance of such training. The Buyer shall, as necessary and in due
time prior to the performance of such training, provide access to the
training facilities set forth in Clause 16.2.3.1 to the Seller’s and the
competent Aviation Authority’s representatives for approval of such
facilities.
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16.3
|
Training
Courses
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16.3.1
|
Training
courses shall be as described in the Seller’s customer services catalog
(the “Seller's Customer
Services Catalog”). The Seller's Customer Services Catalog also
sets forth the minimum and maximum number of trainees per
course.
|
|
|
All training
requests or training course changes made outside of the frame of the
Training Conference shall be submitted by the Buyer with a
***
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16.3.2
|
The
following terms and conditions shall apply to training performed by the
Seller:
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause
16 - Page 1/8
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& Confidential
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(i)
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Training
courses shall be the Seller's standard courses as described in the
Seller's Customer Services Catalog valid at the time of 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; for the avoidance of doubt, for the purpose of
performing training, such training equipment does not include
aircraft.
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(ii)
|
The
training equipment and the training curricula used for the training of
flight, cabin and maintenance personnel shall not be fully customized but
shall be configured in order to obtain the relevant Aviation Authority’s
approval and to support the Seller's training
programs.
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(iii)
|
Training
data and documentation for trainees receiving the training at the Seller's
Training Centers shall be ***. Training data and documentation shall be
marked "FOR TRAINING ONLY" and as such are supplied for the sole and
express purpose of training; training data and documentation shall not be
revised.
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16.3.3
|
When
the Seller’s training courses are provided by the Seller’s instructors
(individually an ”Instructor” and
collectively “Instructors”) the Seller
shall deliver a Certificate of Recognition or a Certificate of Course
Completion (each a “Certificate”) or an
attestation (an “Attestation”), as
applicable, at the end of any such training course. Any such Certificate
or Attestation shall not represent authority or qualification by any
Aviation Authority but may be presented to such Aviation Authority in
order to obtain relevant formal
qualification.
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|
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In
the event of training courses being provided by a training provider
selected by the Seller as set forth in Clause 16.2.2, the Seller shall
cause such training provider to deliver a Certificate or Attestation,
which shall not represent authority or qualification by any Aviation
Authority, but may be presented to such Aviation Authority in order to
obtain relevant formal
qualification.
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16.3.4.1
|
***
|
|
|
It
is understood that the above shall apply to the extent that training
allowances granted under Appendix A
***.
|
|
|
All requests
*** shall be submitted by the Buyer with a ***. The requested
training shall be subject to the Seller’s then existing planning
constraints.
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16.3.4.2
|
Should
the Buyer use none or only part of the training to be provided pursuant to
this Clause 16, no compensation or credit of any nature shall be
provided.
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16.3.5.1
|
Should
the Buyer decide to cancel or reschedule, fully or partially, and
irrespective of the location of the training, a training course, a minimum
advance notification of at least *** prior to the relevant training course
start date is required.
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16.3.5.2
|
If
the notification occurs less than *** but more than *** prior to such
training, a cancellation fee corresponding to *** of such training shall
be, as applicable, either deducted from the training allowance defined in
Appendix A or invoiced at the Seller’s then applicable
price.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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CSN 2008
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16 - Page 2/8
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& Confidential
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16.3.5.3
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If
the notification occurs *** prior to such training, a cancellation fee
corresponding to *** of such training shall be, as applicable, either
deducted from the training allowance defined in Appendix A or invoiced at
the Seller’s then applicable price.
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16.3.5.4
|
All
courses exchanged under Clause 16.3.4.1 shall remain subject to the
provisions of this Clause 16.3.5.
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16.4
|
Prerequisites
and Conditions
|
|
16.4.1
|
Training
shall be conducted in English and all training aids used during such
training shall be written in English using common aeronautical
terminology.
|
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16.4.2
|
The
Buyer hereby acknowledges that all training courses conducted pursuant to
this Clause 16 are "Standard Transition Training Courses" and not "Ab
Initio Training Courses".
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16.4.3
|
Trainees
shall have the prerequisite knowledge and experience specified for each
course in the Seller’s Customer Services
Catalog.
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16.4.4.1
|
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.
|
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16.4.4.2
|
The
Seller reserves the right to verify the trainees' proficiency and previous
professional experience.
|
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16.4.4.3
|
The
Seller shall provide to the Buyer during the Training Conference an
“Airbus Pre-Training Survey” for completion by the Buyer for each
trainee.
|
|
|
The
Buyer shall provide the Seller with an attendance list of the trainees for
each course, with the validated qualification of each trainee, at the time
of reservation of the training course and in no event any later than sixty
(60) calendar days before the start of the training course. The Buyer
shall return concurrently thereto the completed Airbus Pre-Training
Survey, detailing the trainees’ associated background. If the Seller
determines through the Airbus Pre-Training Survey that a trainee does not
match the prerequisites set forth in the Seller’s Customer Services
Catalog, following consultation with the Buyer, such trainee shall be
withdrawn from the program or directed through a relevant entry level
training (ELT) program, which shall be at the Buyer’s
expense.
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16.4.4.4
|
If
the Seller determines at any time during the training that a trainee lacks
the required level, following consultation with the Buyer, such trainee
shall be withdrawn from the program or, upon the Buyer's request, the
Seller may be consulted to direct the above mentioned trainee(s), if
possible, through any other required additional training, which shall be
at the Buyer's expense.
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16.4.5
|
The
Seller shall in no case warrant or otherwise be held liable for any
trainee's performance as a result of any training
provided.
|
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16.5
|
Logistics
|
|
16.5.1
|
Trainees
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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& Confidential
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16.5.1.1
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Living
and travel expenses for the Buyer's trainees shall be borne by the
Buyer.
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16.5.1.2
|
It
shall be the responsibility of the Buyer to make all necessary
arrangements relative to authorizations, permits and/or visas necessary
for the Buyer’s trainees to attend the training courses to be provided
hereunder. Rescheduling or cancellation of courses due to the Buyer’s
failure to obtain any such authorizations, permits and/or visas shall be
subject to the provisions of Clauses 16.3.5.1 thru
16.3.5.3.
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16.5.2
|
Training at External Location -
Seller’s Instructors
|
|
16.5.2.1.1
|
In
the event of training being provided at the Seller’s request at any
location other than the Seller’s Training Centers, as provided for in
Clause 16.2.2, the expenses of the Seller’s Instructors shall be borne
directly by the Seller.
|
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16.5.2.1.2
|
In
the event of training being provided by the Seller’s Instructor(s) at any
location other than the Seller's Training Centers at the Buyer’s request,
the Buyer shall reimburse the Seller for all the expenses related to the
assignment of such Seller Instructors and the performance of their duties
as aforesaid.
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16.5.2.2
|
Living
Expenses
|
|
|
Except
as provided for in Clause 16.5.2.1.1 above, the Buyer shall reimburse the
Seller the living expenses for each Seller Instructor and/or other
Seller’s personnel providing support under this Clause 16, covering the
entire period from his day of departure from his main base to day of
return to such base *** current at the time of the corresponding training
or support.
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|
|
Such
*** 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.
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16.5.2.3
|
Air
Travel
|
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|
|
|
Except
as provided for in Clause 16.5.2.1.1 above, the Buyer shall reimburse the
Seller the airfares for each Seller Instructor and/or other Seller’s
personnel providing support under this Clause 16, in confirmed business
class to and from the Buyer's designated training site and the Seller's
Training Centers, as such airfares are set forth in the Seller's Customer
Services Catalog current at the time of the corresponding training or
support.
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16.5.2.4
|
Buyer’s
Indemnity
|
|
|
Except
in case of gross negligence or willful misconduct of the Seller, the
Seller shall not be held liable to the Buyer for any delay or cancellation
in the performance of any training outside of the Seller's Training
Centers associated with any transportation described in this Clause 16.5.2
and the Buyer shall indemnify and hold harmless the Seller from any such
delay and/or cancellation and any consequences arising
therefrom.
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16.5.3
|
Training Material and Equipment
Availability - Training at External
Location
|
|
|
Training
material and equipment necessary for course performance at any location
other than the Seller's Training Centers or the facilities of a training
provider selected by the Seller shall be provided by the Buyer at its own
cost in accordance with the Seller's
specifications.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause
16 - Page 4/8
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CT0803291
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Private
& Confidential
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Notwithstanding
the foregoing, should the Buyer request the performance of a course at
another location as per Clause 16.2.3.1, the Seller may, upon the Buyer’s
request, provide the training material and equipment necessary for such
course’s performance. Such provision shall be at the Buyer’s
expense.
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16.6
|
Flight
Operations Training
|
|
|
The
Seller shall provide training for the Buyer's flight operations personnel
as further detailed in Appendix A to this Clause 16, including the courses
described in this Clause 16.6.
|
|
16.6.1
|
Flight Crew Training
Course
|
|
|
The
Seller shall perform a flight crew training course program for the Buyer's
flight crews, each of which shall consist of ***, who shall be either
captain(s) or first officer(s).
|
|
16.6.2
|
Base Flight
Training
|
|
16.6.2.1
|
The
Buyer shall provide at its own cost its delivered Aircraft, or any other
aircraft it operates, for any base flight training, which shall consist of
*** per pilot, performed in accordance with the related Airbus training
course definition (the “Base Flight
Training”).
|
|
16.6.2.2
|
Should
it be necessary to ferry the Buyer’s delivered Aircraft to the location
where the Base Flight Training shall take place, the additional flight
time required for the ferry flight to and/or from the Base Flight Training
field shall not be deducted from the Base Flight Training
time.
|
|
16.6.2.3
|
If
the Base Flight Training is performed outside of the zone where the Seller
usually performs such training, the ferry flight to the location where the
Base Flight Training shall take place shall be performed by a crew
composed of the Seller’s and/or the Buyer’s qualified pilots, in
accordance with the relevant Aviation Authority’s regulations related to
the place of performance of the Base Flight
Training.
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16.6.3
|
Flight Crew Line Initial
Operating Experience
|
|
|
In
order to assist the Buyer with initial operating experience after Delivery
of the first Aircraft under the relevant Purchase Agreement, the Seller
shall provide to the Buyer pilot Instructor(s) as set forth in Appendix A
to this Clause 16.
|
|
|
Should
the Buyer request, subject to the Seller's consent, such Seller pilot
Instructors to perform any other flight support during the flight crew
line initial operating period, such as but not limited to line assistance,
demonstration flight(s), ferry flight(s) or any flight(s) required by the
Buyer during the period of entry into service of the Aircraft, it is
understood that such flight(s) shall be deducted from the flight crew line
initial operating experience allowance set forth in Appendix A
hereto.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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CSN 2008
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16 - Page 5/8
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CT0803291
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Private
& Confidential
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It
is hereby understood by the Parties that the Seller's pilot Instructors
shall only perform the above flight support services to the extent they
bear the relevant qualifications to do
so.
|
|
16.6.4
|
Type Specific Cabin Crew
Training Course
|
|
|
The
Seller shall provide type specific training for cabin crews, at one of the
locations defined in Clause 16.2.1.
|
|
|
If
the Buyer’s Aircraft is to incorporate special features, the type specific
cabin crew training course shall be performed no earlier than *** before
the scheduled Delivery Date of the Buyer's first Aircraft to be delivered
under the relevant Purchase
Agreement.
|
|
16.6.5
|
Training on
Aircraft
|
|
|
During
any and all flights performed in accordance with this Clause 16.6, the
Buyer shall bear full responsibility for the aircraft upon which the
flight is performed, including but not limited to any required
maintenance, all expenses such as fuel, oil or landing fees and the
provision of insurance in line with Clause
16.13.
|
|
|
The
Buyer shall assist the Seller, if necessary, in obtaining the validation
of the licenses of the Seller’s pilots performing Base Flight Training or
initial operating experience by the Aviation Authority of the place of
registration of the Aircraft.
|
|
16.7
|
Performance / Operations
Courses
|
|
|
The
Seller shall provide performance/operations training for the Buyer's
personnel as defined in Appendix A to this Clause
16.
|
|
|
The
available courses shall be listed in the Seller’s Customer Services
Catalog current at the time of the
course.
|
|
16.8
|
Maintenance
Training
|
|
16.8.1
|
The
Seller shall provide maintenance training for the Buyer's ground personnel
as further set forth in Appendix A to this Clause
16.
|
|
|
The
available courses shall be as listed in the Seller’s Customer Services
Catalog current at the time of the
course.
|
|
|
The
practical training provided in the frame of maintenance training shall be
performed on the training devices in use in the Seller’s Training
Centers.
|
|
16.8.2
|
Practical Training on
Aircraft
|
|
|
Notwithstanding
Clause 16.8.1 above, upon the Buyer’s request, the Seller may provide
Instructors for the performance of practical training on aircraft (“Practical
Training”).
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
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Clause
16 - Page 6/8
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CT0803291
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Private
& Confidential
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Irrespective
of the location at which the training takes place, the Buyer shall provide
at its own cost an aircraft for the performance of the Practical
Training.
|
|
|
Should
the Buyer require the Seller’s Instructors to provide Practical
Training at
facilities selected by the Buyer, such training shall be subject to prior
approval of the facilities by the Seller. All costs related to such
Practical Training, including but not limited to the Seller's approval of
the facilities, shall be borne by the
Buyer.
|
|
|
The
provision of a Seller Instructor for the Practical Training shall be
deducted from the trainee days allowance defined in Appendix A to this
Clause 16, subject to the conditions detailed in Paragraph 3.3.4
thereof.
|
|
16.9
|
Supplier
and Propulsion Systems Manufacturer
Training
|
|
|
Upon
the Buyer’s request, the Seller shall provide to the Buyer the list of the
maintenance and overhaul training courses provided by major Suppliers and
the applicable Propulsion Systems Manufacturer on their respective
products.
|
|
16.10
|
Proprietary
Rights
|
|
|
All
proprietary rights, including but not limited to patent, design and
copyrights, relating to the Seller's training data and documentation shall
remain with the Seller and/or its Affiliates and/or its Suppliers, as the
case may be.
|
|
|
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.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
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16.11
|
Confidentiality
|
|
|
The
Seller's training data and documentation are designated as confidential
and as such are provided to the Buyer for the sole use of the Buyer, for
training of its own personnel, who undertakes not to disclose the content
thereof in whole or in part, to any third party without the prior written
consent of the Seller, save as permitted herein or otherwise pursuant to
any government or legal requirement imposed upon the
Buyer.
|
|
|
In
the event of the Seller having authorized the disclosure of any training
data and documentation to third parties either under this AGTA, the
relevant Purchase Agreement or by an express prior written authorization,
the Buyer shall cause such third party to agree to be bound by the same
conditions and restrictions as the Buyer with respect to the disclosed
training data and documentation and to use such training data and
documentation solely for the purpose for which they are
provided.
|
|
16.12
|
Transferability
|
|
|
Without
prejudice to Clause 21.1, the Buyer's rights under this Clause 16 may not
be assigned, sold, transferred, novated or otherwise alienated by
operation of law or otherwise, without the Seller's prior written
consent.
|
|
16.13
|
Indemnities
and Insurance
|
|
|
INDEMNIFICATION
PROVISIONS AND INSURANCE REQUIREMENTS APPLICABLE TO THIS CLAUSE 16 ARE AS
SET FORTH IN CLAUSE 19.
|
|
|
THE
BUYER SHALL PROVIDE THE SELLER WITH AN ADEQUATE INSURANCE CERTIFICATE
PRIOR TO ANY TRAINING ON AIRCRAFT.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause
16 - Page 8/8
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CT0803291
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Private
& Confidential
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APPENDIX
A TO CLAUSE 16
APPENDIX "A" TO CLAUSE
16
TRAINING
ALLOWANCE
For the
avoidance of doubt, all quantities indicated below are the total quantities
granted for the whole of the Buyer’s fleet of Aircraft firmly ordered through
the relevant Purchase Agreement, unless otherwise specified.
The
contractual training courses defined in this Appendix A shall be provided for a
period of time as set forth in the relevant Purchase Agreement.
Any
deviation to said training delivery schedule shall be mutually agreed between
the Buyer and the Seller.
|
1.
|
FLIGHT
OPERATIONS TRAINING
|
|
1.1
|
Flight
Crew Training (standard transition course or Cross crew qualification
(CCQ) as applicable)
|
|
|
Flight
Crew Training allowances are specified in the relevant Purchase
Agreement.
|
|
1.2
|
Extended Range For Twin Engine
Aircraft Operations (ETOPS)
Training
|
|
|
ETOPS
training allowances are specified in the relevant Purchase
Agreement.
|
|
1.3
|
Low
Visibility Operations Training
|
|
|
Low
Visibility Operations Training allowances are specified in the relevant
Purchase Agreement.
|
|
1.4
|
Flight
Crew Line Initial Operating
Experience
|
|
|
Flight
Crew Line Operating Experience allowances are specified in the relevant
Purchase Agreement.
|
|
|
Unless
otherwise agreed during the Training Conference, in order to follow the
Aircraft Delivery schedule, the maximum number of pilot Instructors
present at any one time shall be limited to *** pilot
Instructors.
|
|
1.5
|
Type
Specific Cabin Crew Training Course
|
|
|
Type
Specific Crew Training Course allowances are specified in the relevant
Purchase Agreement.
|
|
1.6
|
Airbus
Pilot Instructor Course (APIC)
|
Airbus
Pilot Instructor Course allowances are specified in the relevant Purchase
Agreement. APIC courses shall be performed in groups of
***.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Appendix
A to Clause 16 - Page 1/2
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CT0803291
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Private
& Confidential
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APPENDIX
A TO CLAUSE 16
|
2.
|
PERFORMANCE
/ OPERATIONS COURSE(S)
|
|
2.1
|
Performance
/ Operation Course(s) allowances are specified in the relevant Purchase
Agreement.
|
|
2.2
|
The
above trainee days shall be used solely for the performance/operations
training courses as defined in the Seller’s applicable Training Course
Catalog.
|
|
3.
|
MAINTENANCE
TRAINING
|
|
3.1
|
Maintenance
Training Courses allowances are specified in the relevant Purchase
Agreement.
|
|
3.2
|
Engine
Run-up courses allowances are specified in the relevant Purchase
Agreement.
|
|
4.
|
TRAINEE
DAYS ACCOUNTING
|
|
|
Trainee
days are counted as follows:
|
|
4.1
|
For
instruction at the Seller's Training Centers: *** of instruction for ***
trainee equals ***. The number of trainees originally registered at the
beginning of the course shall be counted as the number of trainees to have
taken the course.
|
|
4.2
|
For
instruction outside of the Seller's Training Centers: *** of instruction
by *** Seller Instructor equals the actual number of trainees attending
the course or a ***,.
|
|
4.3
|
For
structure maintenance training courses outside the Seller’s Training
Center(s), *** of instruction by *** Seller Instructor equals the actual
number of trainees attending the course or
***.
|
|
4.4
|
For
practical training, whether on training devices or on aircraft, *** of
instruction by *** Seller Instructor equals the actual number of trainees
attending the course or a ***.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
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Appendix
A to Clause 16 - Page 2/2
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CT0803291
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Private
& Confidential
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17
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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, the benefit of which is accepted by the Buyer when entering
into a Purchase Agreement. Said agreements become enforceable as soon as
and for as long as an operator is identified as an Airbus aircraft
operator.
|
|
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 including
revision service and be published in the English language. The Seller
shall recommend that software data, where applicable, be supplied in the
form of an appendix to the Component Maintenance Manual, such data shall
be provided in compliance with the applicable ATA
Specification;
|
|
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 iSpecification 2200, 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.
|
|
17.1.3
|
Upon
the Buyer’s request, the Seller shall provide the Buyer with Supplier
Product Support Agreements familiarization training at the Seller’s
facilities in Blagnac, France. An on-line training module shall be further
available through AirbusWorld, access to which shall be subject to the
“General Terms and Conditions of Access to and Use of AirbusWorld”
(hereinafter the “GTC”), as set forth in
Part 4 of Exhibit I to this AGTA.
|
|
17.2
|
Supplier
Compliance
|
|
|
The
Seller shall monitor Suppliers’ compliance with support commitments
defined in the Supplier Product Support Agreements and shall, if
necessary, jointly take remedial action with the
Buyer.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
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Clause
17 - Page 1/1
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CT0803291
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Private
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18
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BUYER FURNISHED
EQUIPMENT
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18.1
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Administration
|
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18.1.1.1
|
Without
additional charge and in accordance with the Specification, the Seller
shall provide for the installation of those items of equipment that are
identified in the Specification as being furnished by the Buyer ("Buyer Furnished
Equipment" or "BFE"), provided that the
BFE and the supplier of such BFE (the “BFE Supplier”) are
referred to in the Airbus BFE Product Catalog valid at the time the BFE
Supplier is selected.
|
|
18.1.1.2
|
Notwithstanding
the foregoing and without prejudice to Clause 2.4, if the Buyer wishes to
install BFE manufactured by a supplier who is not referred to in the
Airbus BFE Product Catalog, the Buyer shall so inform the Seller and the
Seller shall conduct a feasibility study of the Buyer’s request, in order
to consider approving such supplier, provided that such request is
compatible with the Seller’s industrial planning and the associated
Scheduled Delivery Month for the Buyer’s Aircraft. In addition, it is a
prerequisite to such approval that the supplier being considered is
qualified by the Seller’s Aviation Authorities to produce equipment for
installation on civil aircraft. Any approval of a supplier by the Seller
shall be performed at the Buyer’s expense. The Buyer shall cause any BFE
supplier approved under this Clause 18.1.1.2 (each an “Approved BFE Supplier”)
to comply with the conditions set forth in this Clause 18 and specifically
Clause 18.2.
|
|
|
Except
for the specific purposes of this Clause 18.1.1.2, the term “BFE Supplier”
shall be deemed to include Approved BFE
Suppliers.
|
|
18.1.2.1
|
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 (the “BFE Engineering
Definition”). The Seller shall provide to the Buyer and/or the BFE
Supplier(s), within an appropriate timeframe, the necessary interface
documentation to enable the development of the BFE Engineering
Definition.
|
|
|
The
BFE Engineering Definition shall include the description of the dimensions
and weight of BFE, the information related to its certification and the
information necessary for the installation and operation thereof. The
Buyer shall furnish, or cause the BFE Suppliers to furnish, the BFE
Engineering Definition by the dates
specified.
|
|
|
Thereafter,
the BFE Engineering Definition shall not be revised, except through an SCN
executed in accordance with Clause
2.
|
|
18.1.2.2
|
The
Seller shall also provide in due time to the Buyer a schedule of dates and
the shipping addresses for delivery of the 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 Aircraft delivery
schedule. The Buyer shall provide, or cause the BFE Suppliers to provide,
the BFE by such dates in a serviceable condition, in order to allow
performance of any assembly, test or acceptance process in accordance with
the Seller’s industrial schedule. In order to facilitate the follow-up of
the timely receipt of BFE, the Buyer shall, upon the Seller’s request,
provide to the Seller dates and references of all BFE purchase orders
placed by the Buyer.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
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Clause
18 - Page 1/5
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CT0803291
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Private
& Confidential
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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) and/or at the Manufacture Facilities in Tianjin (PEOPLE'S
REPUBLIC OF CHINA) 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.
|
|
18.1.3
|
Without
prejudice to the Buyer’s obligations hereunder, in order to facilitate the
development of the BFE Engineering Definition, the Seller shall organize
meetings between the Buyer and BFE Suppliers. The Buyer hereby agrees to
participate in such meetings and to provide adequate technical and
engineering expertise to reach decisions within the defined
timeframe.
|
|
|
In
addition, throughout the development phase and up to Delivery of the
Aircraft to the Buyer, the Buyer
agrees:
|
|
|
·
|
to
monitor the BFE Suppliers and ensure that they shall enable the Buyer to
fulfil its obligations, including but not limited to those set forth in
the Customization Milestone Chart;
|
|
|
·
|
that,
should a timeframe, quality or other type of risk be identified at a given
BFE Supplier, the Buyer shall allocate resources to such BFE Supplier so
as not to jeopardize the industrial schedule of the
Aircraft;
|
|
|
·
|
for
major BFE, including, but not being limited to, seats, galleys
and IFE (“Major
BFE”) to participate on a mandatory basis in the specific meetings
that take place between BFE Supplier selection and BFE delivery,
namely:
|
|
|
-
|
Preliminary
Design Review (“PDR”),
|
|
|
-
|
Critical
Design Review (“CDR”);
|
|
|
·
|
to
attend the First Article Inspection (“FAI”) for the first
shipset of all Major BFE. Should the Buyer not attend such FAI, the Buyer
shall delegate the FAI to the BFE Supplier and confirmation thereof shall
be supplied to the Seller in
writing;
|
|
|
·
|
to
attend the Source Inspection (“SI”) that takes place at
the BFE Supplier’s premises prior to shipping, for each shipset of all
Major BFE. Should the Buyer not attend such SI, the Buyer shall delegate
the SI to the BFE Supplier and confirmation thereof shall be brought to
the Seller in writing. Should the Buyer not attend the SI, the Buyer shall
be deemed to have accepted the conclusions of the BFE Supplier with
respect to such SI.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
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Clause
18 - Page 2/5
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CT0803291
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Private
& Confidential
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|
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The
Seller shall be entitled to attend the PDR, the CDR and the FAI. In doing
so, the Seller’s employees shall be acting in an advisory capacity only
and at no time shall they be deemed to be acting as Buyer's employees or
agents, either directly or
indirectly.
|
|
18.1.4
|
The
BFE shall be imported into FRANCE or into the FEDERAL REPUBLIC OF GERMANY
or into the PEOPLE'S REPUBLIC OF CHINA by the Buyer under a suspensive
customs system ("Régime de l'entrepôt douanier ou régime de
perfectionnement actif " or "Zollverschluss" or "Inward Processing")
without application of any French or German or Chinese tax or customs
duty, and shall be delivered DDU to the following shipping
addresses:
|
AIRBUS FRANCE S.A.S.
000 Xxxxx xx Xxxxxxx
00000 XXXXXXXX
XXXXXX
or
XXXXXX
XXXXXXXXXXX XxxX
Xxxxxxxxx 00
00000 XXXXXXX
FEDERAL REPUBLIC OF
GERMANY
or
AIRBUS
Final Assembly Co., Ltd
Tianjin
Airport Industry Park
Xx. 0
Xxxx 0 Xxxx
000000
XXXXXXX
XXXXXX'X
XXXXXXXX OF CHINA
|
|
as
specified by the Seller.
|
|
18.2
|
Applicable
Requirements
|
|
|
The
Buyer is responsible for, at its expense, and warrants that the BFE
shall:
|
|
|
·
|
be
manufactured by a qualified BFE Supplier,
and
|
|
|
·
|
meet
the requirements of the applicable Specification of the Aircraft,
and
|
|
|
·
|
comply
with the BFE Engineering Definition,
and
|
|
|
·
|
comply
with applicable requirements incorporated by reference to the Type
Certificate and listed in the Type Certificate Data Sheet,
and
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause
18 - Page 3/5
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CT0803291
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Private
& Confidential
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|
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·
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be
approved by the Aviation Authority delivering the Export Airworthiness
Certificate and by the Buyer's Aviation Authority for installation and use
on the Aircraft at the time of Delivery of the Aircraft,
and
|
|
|
·
|
not
infringe any patent, copyright or other intellectual property right of any
third party, and
|
|
|
·
|
not
be subject to any legal obligation or other encumbrance that may prevent,
hinder or delay the installation of the BFE in the Aircraft and/or the
Delivery of the Aircraft.
|
|
|
The
Seller shall be entitled to refuse any item of BFE that it considers
incompatible with the Specification, the BFE Engineering Definition or the
certification requirements.
|
|
18.3
|
Buyer's Obligation and Seller's
Remedies
|
|
18.3.1
|
Any
delay or failure by the Buyer or the BFE Suppliers
in:
|
|
|
·
|
complying
with the foregoing warranty or in providing the BFE Engineering Definition
or field service mentioned in Clause 18.1.2.2,
or
|
|
|
·
|
furnishing
the BFE in a serviceable condition at the requested delivery date,
or
|
|
|
·
|
obtaining
any required approval for such BFE equipment under the above mentioned
Aviation Authorities’ regulations,
|
|
|
may
delay the performance of any act to be performed by the Seller, including
Delivery of the Aircraft. The Seller shall not be responsible for such
delay which shall 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 additional costs attributable to such delay or
failure by the Buyer or the BFE Suppliers, such as storage, taxes,
insurance and costs of out-of sequence
installation.
|
|
18.3.2
|
In
addition, in the event of any delay or failure mentioned in 18.3.1 above,
the Seller may:
|
|
|
(i)
|
select,
purchase and install equipment similar to the BFE at issue, 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 Final
Price of the Aircraft, for adjustment and calibration;
or
|
|
(ii)
|
if
the BFE is delayed by more than *** beyond, or is not approved
***, deliver the Aircraft without the installation of such BFE,
notwithstanding applicable terms of Clause 7, if any, and the Seller
shall thereupon be relieved of all obligations to install such
equipment.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause
18 - Page 4/5
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CT0803291
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Private
& Confidential
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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)
shall be with the Seller for the period starting upon delivery of the BFE
to the Seller’s facilities until the Aircraft is delivered to the Buyer
and for as long as such BFE is under the care, custody and control of the
Seller.
|
|
18.5
|
Disposition of BFE Following
Termination
|
|
18.5.1
|
If
a termination of this AGTA pursuant to the provisions of Clause 20 occurs
with respect to an Aircraft in which all or any part of the BFE has been
installed prior to the date of such termination, the Seller shall be
entitled, but not required, to remove all items of BFE that can be removed
without damage to the Aircraft and to undertake commercially reasonable
efforts to facilitate the sale of such items of BFE to other customers,
retaining and applying the proceeds of such sales to reduce the Seller’s
damages resulting from the
termination.
|
|
18.5.2
|
The
Buyer shall cooperate with the Seller in facilitating the sale of BFE
pursuant to Clause 18.5.1 and shall be responsible for all costs incurred
by the Seller in removing and facilitating the sale of such BFE. The Buyer
shall reimburse the Seller for all such costs within five (5) Business
Days of receiving documentation of such costs from the
Seller.
|
|
18.5.3
|
The
Seller shall notify the Buyer as to those items of BFE not sold by the
Seller pursuant to Clause 18.5.1 above and, at the Seller’s request, the
Buyer shall undertake to remove such items from the Seller’ facility
within thirty (30) days of the date of such notice. The Buyer shall have
no claim against the Seller for damage, loss or destruction of any item of
BFE removed from the Aircraft and not removed from Seller’s facility
within such period.
|
|
18.5.4
|
The
Buyer shall have no claim against the Seller for damage to or destruction
of any item of BFE damaged or destroyed in the process of being removed
from the Aircraft, provided that the Seller shall use reasonable care in
such removal.
|
|
18.5.5
|
The
Buyer shall grant the Seller title to any BFE items that cannot be removed
from the Aircraft without causing damage to the Aircraft or rendering any
system in the Aircraft unusable.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause
18 - Page 5/5
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CT0803291
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Private
& Confidential
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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 Affiliates and each of their
respective directors, officers, agents, employees and insurers
from and against all liabilities, claims, damages, costs and expenses
(including legal expenses and attorney fees) in respect
of:
|
|
|
(i)
|
loss
of, or damage to, the Seller's
property;
|
|
|
(ii)
|
injury
to, or death of, the directors, officers, agents or employees of the
Seller;
|
|
|
(iii)
|
any
damage caused by the Seller to third parties arising out of, or in any way
connected with, any ground check, check or controls under Clause 6 or
Clause 8 of this AGTA and/or Ground Training Services ;
and
|
|
|
(iv)
|
any
damage caused by the Buyer and/or the Seller to third parties arising out
of, or in any way connected with, technical acceptance flights under
Clause 8 of this AGTA.
|
|
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 Affiliates and each of their
respective directors, officers, agents, employees, sub-contractors and
insurers from and against all liabilities, claims, damages, costs and
expenses (including legal expenses and attorney fees) in respect
of:
|
|
(i)
|
loss
of, or damage to, the Buyer’s
property;
|
|
|
(ii)
|
injury
to, or death of, the directors, officers, agents or employees of the
Buyer; and
|
|
|
(iii)
|
any
damage caused by the Buyer to third parties arising out of, or in any way
connected with, any ground check, check or controls under Clause 6 or
Clause 8 of this AGTA and/or Ground Training
Services.
|
|
19.2
|
Indemnities Relating to
Training on Aircraft after
Delivery
|
|
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 Affiliates and each of their
respective directors, officers, agents, employees, sub-contractors and
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 in
respect of:
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause
19 - Page 1/3
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CT0803291
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Private
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|
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(i)
|
injury
to, or death of, any person (including any of the Buyer's directors,
officers, agents and employees, but not directors, officers, agents and
employees of the Seller); and
|
|
|
(ii)
|
loss
of, or damage to, any property and for loss of use thereof (including the
aircraft on which the Aircraft Training Services are
performed),
|
arising
out of, or in any way connected with, the performance of any Aircraft Training
Services.
|
19.2.2
|
The
foregoing indemnity shall not apply with respect to the Seller’s legal
liability towards any person other than the Buyer, its directors,
officers, agents or employees arising out of an accident caused solely 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, its
directors, officers, agents or employees, be solely liable for and shall
indemnify and hold harmless the Seller, its Affiliates and each of their
respective directors, officers, agents, employees, sub-contractors and
insurers from and against all liabilities, claims, damages, costs and
expenses (including legal expenses and attorney fees) in respect
of:
|
|
|
(i)
|
injury
to, or death of, any person (except Seller’s Representatives);
and
|
|
|
(ii)
|
loss
of, or damage to, any property and for loss of use
thereof;
|
|
|
arising
out of, or in any way connected with the Seller’s Representatives
Services.
|
|
19.3.2
|
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 Affiliates and each of their
respective directors, officers, agents, employees and insurers from and
against all liabilities, claims, damages, costs and expenses (including
legal expenses and attorney fees) in respect of all injuries to, or death
of, the Seller’s Representatives arising out of, or in any way connected
with the Seller’s Representatives
Services.
|
|
19.4
|
Insurances
|
|
|
To
the extent of the Buyer's undertaking set forth in Clause 19.2.1, for
all training periods on aircraft, the Buyer
shall:
|
|
|
(i)
|
cause
the Seller, its directors, officers, agents, employees, Affiliates and
sub-contractors, and their respective insurers, to be named as additional
insured under the Buyer’s Comprehensive Aviation Legal Liability insurance
policies, including War Risks and Allied Perils such insurance shall
include the AVN 52E Extended Coverage Endorsement Aviation Liabilities as
well as additional coverage in respect of War and Allied Perils Third
Parties Legal Liabilities Insurance;
and
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause
19 - Page 2/3
|
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CT0803291
|
Private
& Confidential
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|
|
(ii)
|
with
respect to the Buyer's Hull All Risks and Hull War Risks insurances and
Allied Perils, cause the insurers of the Buyer's hull insurance policies
to waive all rights of subrogation against the Seller, its directors,
officers, agents, employees, Affiliates and sub-contractors, and their
respective insurers.
|
|
|
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) Business Days prior to the start of any such training period,
certificates of insurance from the Buyer's insurance broker(s), in English,
evidencing the limit of liability cover and period of insurance in a form
acceptable to the Seller certifying that such policies have been endorsed as
follows:
|
|
(i)
|
under
the Comprehensive Aviation Legal Liability Insurances, the Buyer's
policies are primary and non-contributory to any insurance maintained by
the Seller;
|
|
|
(ii)
|
such
insurance can only be cancelled or materially altered by the giving of not
less than thirty (30) calendar days (but seven (7) calendar days or such
lesser period as may be customarily available in respect of War Risks and
Allied Perils) prior written notice thereof to the Seller;
and
|
|
|
(iii)
|
under
any such cover, all rights of subrogation against the Seller, its
directors, officers, agents, employees, Affiliates and sub-contractors,
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.
|
|
19.5
|
Notice of
Claims
|
|
|
If
any claim is made or suit is brought against either Party (or its
respective directors, officers, agents, employees, Affiliates and
sub-contractors) for damages for which liability has been assumed by the
other Party in accordance with the provisions of this AGTA and/or the
relevant Purchase 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 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.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause
19 - Page 3/3
|
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CT0803291
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Private
& Confidential
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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;
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(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 ***; or
|
|
|
(f)
|
is
divested of a substantial part of its assets for a period of at
***,
|
|
|
then
the other Party may, to the full extent permitted by law, by written
notice, terminate all or part of any Purchase
Agreement.
|
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20.2
|
Termination for Non-Payment of
Predelivery Payments
|
|
|
If
for any Aircraft the Buyer fails to make any Predelivery Payment at the
time, in the manner and in the amount specified in Clause 5.3 as
supplemented by the relevant Purchase Agreement, the Seller may, by
written notice, terminate all or part of such Purchase Agreement with
respect to undelivered Aircraft.
|
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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 ***after
the date of such notification.
|
|
|
If
the Buyer has not cured such default within such period, the Seller may,
by written notice, terminate all or part of the relevant Purchase
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
such termination shall be borne by the
Buyer.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
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Clause 20
- Page 1/2
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CT0803291
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20.4
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Termination for Default under
other Agreements
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|
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If
the Buyer or any of its Affiliates fails to perform or comply with any
material obligation expressed to be assumed by it in this AGTA, any
Purchase Agreement and/or any other agreement between the Buyer or any of
its Affiliates and the Seller or any of its Affiliates and such failure is
not remedied ***after the Seller has given notice thereof to the Buyer,
then the Seller may, by written notice, terminate all or part of any
Purchase Agreement.
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20.5
|
General
|
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20.5.1
|
To
the full extent permitted by law, the termination of all or part of a
Purchase 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 or arbitral panel having
jurisdiction.
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20.5.2
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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 a Purchase Agreement
shall be without prejudice to any other rights and remedies available to
such Party to seek termination of all or part of such Purchase Agreement
before any court or arbitral panel having jurisdiction pursuant to any
failure by the other Party to perform its obligations under such Purchase
Agreement.
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20.5.3
|
If
the Party taking the initiative of terminating a Purchase Agreement
decides to terminate part of it only, the notice sent to the other Party
shall specify those provisions of such Purchase Agreement which shall be
terminated.
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20.5.4
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In
the event of termination of a Purchase 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 AGTA, such Purchase 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 such
Purchase Agreement and/or this AGTA and corresponding to the Aircraft,
services, data and other items covered by such
termination.
|
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20.5.5
|
The
termination of all or part of a Purchase Agreement pursuant to Clauses
20.1, 20.2, 20.3 and 20.4 shall be deemed to include the termination of
this AGTA insofar as it relates to the Aircraft, services, data and other
items covered by such termination.
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
|
Clause 20
- Page 2/2
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CT0803291
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21
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ASSIGNMENTS AND
TRANSFERS
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21.1
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Assignments by
Buyer
|
|
|
The
Buyer may not sell, assign, novate or transfer its rights and obligations
under this AGTA and/or any Purchase Agreement to any person without the
prior written consent of the
Seller.
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21.2
|
Assignments by
Seller
|
|
|
The
Seller may at any time sell, assign, novate or transfer its rights and
obligations under this AGTA and any Purchase Agreement to any person,
provided such sale, assignment or transfer be notified to Buyer and shall
not have a material adverse effect on any of the Buyer’s rights and
obligations under this AGTA and/or any such Purchase
Agreement.
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21.2.1
|
Transfer of Rights and
Obligations upon
Restructuring
|
In the
event that the Seller is subject to a corporate restructuring having as its
object the transfer of, or succession by operation of law in, all or a
substantial part of its assets and liabilities, rights and obligations,
including those existing under this AGTA and/or any Purchase Agreement, to a
person (the “Successor”) under the control of the
ultimate controlling shareholders of the Seller at the time of that
restructuring, for the purpose of the Successor carrying on the business carried
on by the Seller at the time of the restructuring, such restructuring shall be
completed without consent of the Buyer following notification by the Seller to
the Buyer in writing. The Buyer recognises that succession of the Successor to
the AGTA and/or any such Purchase Agreement by operation of law, which is valid
under the law pursuant to which that succession occurs, shall be binding upon
the Buyer.
|
21.2.2
|
Designations by the
Seller
|
The
Seller may at any time by notice to the Buyer designate facilities or personnel
of any Affiliate of the Seller at which or by whom the services to be performed
under this AGTA and/or any Purchase Agreement shall be performed.
Notwithstanding such designation, the Seller shall remain ultimately responsible
for fulfillment of all obligations undertaken by the Seller in this AGTA and/or
any such Purchase Agreement.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
|
Clause
21 - Page 1/2
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CT0803291
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22
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MISCELLANEOUS
PROVISIONS
|
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22.1
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Data
Retrieval
|
|
|
The
Buyer shall provide the Seller, as the Seller may reasonably request, with
all the necessary data as customarily compiled by the Buyer and 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.
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22.2
|
Notices
|
All
notices and requests required or authorized hereunder shall be given in writing
either by personal delivery to an authorized representative of the Party to whom
the same is given or by registered mail (return receipt requested), express mail
(tracking receipt requested) or by facsimile, to be confirmed by subsequent
registered mail, and the date upon which any such notice or request is so
personally delivered or if such notice or request is given by registered mail,
the date upon which it is received by the addressee or, if given by facsimile,
the date upon which it is sent with a correct confirmation printout, provided
that if such date of receipt is not a Business Day notice shall be deemed to
have been received on the first following Business Day, shall be deemed to be
the effective date of such notice or request.
Seller’s address for notices
is:
AIRBUS, S.A.S.
Attention to V. P.
Contracts
1 Rond-Point Xxxxxxx
Xxxxxxxx
31707 Blagnac Cedex
France
Buyer’s
address for notices is:
CHINA
SOUTHERN AIRLINES COMPANY LIMITED
Bai Yun
Airport, Guangzhou 510405, People's Republic of China
Attention:
Xx. Xxxx
Su Guang, Vice President
email:
xxxxxx@xx-xxx.xxx
fax:
x00-00-0000-0000
Planning
Department
Xx. Xxxxx
Xxxx Xxxx, Deputy GM of Planning Department
email:
xxxxxxx@xx-xxx.xxx
fax:
x00-00-0000-0000
Maintenance
& Engineering Department
Xx. Xx
Ming, Deputy GM of Maintenance & Engineering
Department
email:
xxxx-xx@xx-xxx.xxx
fax:
x00-00-0000-0000
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
|
Clause 22
- Page 1/6
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CT0803291
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Private
& Confidential
|
Legal
Department
Xx. Xxx
Mila
email:
xxxxxxx@xx-xxx.xxx
fax:
x00-00-0000-0000
Finance
Department
Ms. Xxxx
Xxxx Feng email: xxxx-xx@xx-xxx.xxx
Mr.
Xxxxxxx Xxxxx email: xxxxxxxx@xx-xxx.xxx
fax:
x00-00-0000-0000
|
|
or
such other address or such other person as the Party receiving the notice
or request may reasonably designate from time to
time.
|
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22.3
|
Waiver
|
|
|
The
failure of either Party to enforce at any time any of the provisions of
this AGTA and/or of any Purchase Agreement, or to exercise any right
therein provided, or to require at any time performance by the other Party
of any of the provisions thereof, 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 AGTA and/or of any such Purchase 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 AGTA and/or of any Purchase Agreement shall not
constitute a waiver of any future obligation to comply with such
provision, condition or
requirement.
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|
22.4
|
Law and
Jurisdiction
|
|
22.4.1
|
This
AGTA and any Purchase Agreement incorporating the terms of this AGTA shall
be governed by and construed in accordance with the laws of
England.
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22.4.2
|
Any
dispute, controversy or claim arising out of or in connection with this
AGTA and/or any Purchase Agreement, including any question regarding their
existence, validity or termination ("Dispute") shall be
referred to and finally resolved in accordance with the following
procedure.
|
The
parties shall first attempt in good faith to resolve the Dispute by negotiation,
in which case, one party shall give notice to the other of the Dispute ("Notice of Dispute"). Such
Notice of Dispute shall include a summary of the subject of the Dispute and the
arguments upon which that party relies.
Any
Dispute not resolved by negotiation within thirty (30) calendar days following
receipt of the Notice of Dispute by the other party shall be referred to and
finally resolved by arbitration under the Rules of Arbitration of the
International Chamber of Commerce ("ICC") (the "Rules"), which Rules are
deemed to be incorporated by reference into this AGTA and any Purchase
Agreement.
Arbitration
shall be in the English language and be administered by the International Court
of Arbitration of the ICC pursuant to the Rules. The number of arbitrators shall
be three. The place of arbitration shall be London, United Kingdom. The decision
of the arbitral tribunal shall be final and binding on the Parties.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
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AGTA
CSN 2008
|
Clause 22
- Page 2/6
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CT0803291
|
Private
& Confidential
|
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22.5
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Contracts (Rights of Third
Parties) Xxx 0000
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|
|
The
Parties do not intend that any term of this AGTA and/or of any Purchase
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 AGTA
and such Purchase 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
AGTA and/or of any Purchase Agreement without the consent of any person
who is not a party to this AGTA and such Purchase
Agreement.
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|
22.6
|
International Supply
Contract
|
|
|
The
Buyer and the Seller recognise that this AGTA is an international 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
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
AGTA and any relevant Purchase
Agreement.
|
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22.7
|
Severability
|
|
|
In
the event that any provision of this AGTA and/or of a Purchase Agreement
should for any reason be held ineffective, the remainder of this AGTA and
of such Purchase 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 AGTA and/or of a
Purchase Agreement prohibited or unenforceable in any
respect.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause 22
- Page 3/6
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CT0803291
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Private
& Confidential
|
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22.8
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Alterations to
Contract
|
|
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This
AGTA and/or any Purchase 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 AGTA and/or any Purchase Agreement shall be in
English.
|
|
22.10
|
Counterparts
|
|
|
This
AGTA has been executed in three (3) original copies which are in
English.
|
Notwithstanding
the above, this AGTA may be executed by the Parties in separate counterparts,
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same AGTA.
|
22.11
|
Inconsistencies
|
|
22.11.1
|
In
the event of any inconsistency between the terms of this AGTA and/or the
relevant Purchase Agreement on one part and the terms contained on the
other part, in either (i) the Specification, or (ii) any other Exhibit, in
each such case the terms of this AGTA and/or the relevant Purchase
Agreement shall prevail over the terms of the Specification or any other
Exhibit. For the purpose of this Clause 22.11.1, the term AGTA
shall not include the Specification or any other Exhibit
hereto.
|
|
22.11.2
|
If
there is any inconsistency between the AGTA and any Purchase Agreement,
the latter shall prevail to the extent of such
inconsistency.
|
|
22.12
|
Confidentiality
|
|
|
This
AGTA and any Purchase Agreement, including any Exhibits or other documents
related thereto or other data exchanged between the Buyer and the Seller
for the fulfilment of their respective obligations under this AGTA and/or
any Purchase Agreement 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 auditors, legal or tax advisors for the
purpose of implementation hereof.
|
In
particular, both Parties agree:
|
|
-
|
not
to make any press release concerning the whole or any part of the contents
and/or subject matter of this AGTA and/or of any Purchase Agreement
without the prior written consent of the other Party
hereto.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause 22
- Page 4/6
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CT0803291
|
Private
& Confidential
|
|
|
-
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that
any and all terms and conditions of the transaction contemplated in this
AGTA and/or any Purchase Agreement are strictly personal and exclusive to
the Buyer, including in particular, but not limited to, the Aircraft
pricing (the “Personal Information”). The Buyer therefore agrees to enter
into consultations with the Seller reasonably in advance of any required
disclosure of Personal Information to financial institutions, including
operating lessors, investment banks and their agents or other relevant
institutions for aircraft sale and leaseback or any other Aircraft or
Predelivery Payment financing purposes (the “Receiving
Party”).
|
|
|
Without
prejudice to the foregoing, any disclosure of Personal Information to a
Receiving Party shall be subject to written agreement between the Buyer
and the Seller, including in particular, but not limited
to:
|
|
|
(i)
|
the
contact details of the Receiving
Party,
|
|
|
(ii)
|
the
extent of the Personal Information subject to
disclosure,
|
|
|
(iii)
|
the
Aircraft pricing to be provided to the Receiving
Party.
|
|
|
Furthermore,
the Buyer shall use its best efforts to limit the disclosure of the
contents of this AGTA and/or any Purchase Agreement to the extent legally
permissible in any filing required to be made by the Buyer with any
governmental or regulatory agency. The Buyer agrees that prior
to any such disclosure or filing, the Seller and the Buyer shall jointly
review and agree on the terms and conditions of the document to be filed
or disclosed.
|
|
|
The
provisions of this Clause 22.12 shall survive any termination of this AGTA
and/or any Purchase Agreement for a period of five (5) years after the
date of Delivery of the last Aircraft to be delivered under any Purchase
Agreement.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause 22
- Page 5/6
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CT0803291
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Private
& Confidential
|
IN WITNESS WHEREOF this AGTA
was entered into the day and year first above written.
|
Agreed
and Accepted
|
Agreed
and Accepted
|
|||
|
For
and on behalf of
|
For
and on behalf of
|
|||
|
CHINA
SOUTHERN AIRLINES
|
AIRBUS
S.A.S.
|
|||
|
COMPANY
LIMITED
|
||||
|
Name:
|
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Name:
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|
|
Title:
|
|
Title:
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|
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Witnessed
and acknowledged,
|
||
|
For
and on behalf of
|
||
|
CHINA
SOUTHERN AIRLINES GROUP
|
||
|
IMPORT
AND EXPORT TRADING CORP., LTD.
|
||
|
Name:
|
|
|
|
Title:
|
|
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*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2008
|
Clause 22
- Page 6/6
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CT0803291
|
Private
& Confidential
|
EXHIBIT
A
EXHIBIT
A
SPECIFICATION
The
Aircraft Standard Specification is defined in the relevant Purchase
Agreement.
This
Exhibit A is intentionally deleted.
|
AGTA
CSN 2009
|
Exhibit
A
|
Page 1/1
|
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CT0803291
|
Private
& Confidential
|
EXHIBIT
B
EXHIBIT
B
FORM
OF
SPECIFICATION CHANGE
NOTICE
|
AGTA
CSN 2009
|
Exhibit
B
|
Page
1/1
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CT0803291
|
Private
& Confidential
|
EXHIBIT
C
EXHIBIT
C
AIRFRAME PRICE REVISION
FORMULA
The
Airframe Price Revision Formula is defined in the relevant Purchase
Agreement.
This
Exhibit C is intentionally deleted.
|
AGTA
CSN 2009
|
Page
1/1
|
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|
CT0803292
|
Exhibit
C
|
Private
& Confidential
|
CERTIFICATE OF
ACCEPTANCE
In
accordance with the terms of [clause [·]] of the AGTA dated [day] [month] [year] and made between CHINA
SOUTHERN AIRLINES COMPANY LIMITED (the “Customer”) and AIRBUS S.A.S.
as amended and supplemented from time to time (the “AGTA”), the technical
acceptance tests relating to one Airbus A3[·]-[·] aircraft, bearing
manufacturer’s serial number [·], and registration xxxx
[·](the “Aircraft”) have taken place in
[Blagnac/Hamburg/Tianjin].
In view
of said tests having been carried out with satisfactory results, the Customer,
[as agent of [insert the name of the lessor/SPC] (the “Owner”) pursuant to the
[purchase agreement assignment] dated [day] [month] [year], between the Customer and
the Owner] hereby
approves the Aircraft as being in conformity with the provisions of the AGTA and
the relevant Purchase Agreement and accepts the Aircraft for delivery in
accordance with the provisions of the AGTA and the relevant Purchase
Agreement.
Such
acceptance shall 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
irrevocably waived.
IN
WITNESS WHEREOF, the Customer, [as agent of the Owner] has caused this
instrument to be executed by its duly authorised representative this _____ day
of [month], [year] in
[Blagnac/Hamburg].
CUSTOMER
[as agent of OWNER]
Name:
Title:
Signature:
|
AGTA
CSN 2009
|
Exhibit
D
|
Page
1/1
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
E
XXXX OF
SALE
Know all
men by these presents that Airbus S.A.S., a Société par Actions
Simplifiée existing under French law and having its principal office at 1
rond-point Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx Xxxxx, XXXXXX (the “Seller”), was this [day] [month] [year] the owner of the title
to the following airframe (the “Airframe”), the
[engines/propulsion systems] as specified (the “[Engines/Propulsion Systems]”) and [all
appliances, components, parts, instruments, accessories, furnishings, modules
and other equipment of any nature], [excluding buyer furnished equipment (“BFE”),] incorporated therein,
installed thereon or attached thereto on the date hereof (the “Parts”):
|
AIRFRAME:
|
[ENGINES/PROPULSION SYSTEMS]:
|
|
AIRBUS
Model A3[·]-[·]
|
[Insert
name of engine or propulsion system manufacturer] Model [·]
|
|
MANUFACTURER'S
|
ENGINE
SERIAL NUMBERS:
|
|
SERIAL
NUMBER: [·]
|
LH: [·]
|
|
RH:
[·]
|
|
|
REGISTRATION XXXX: [·]
|
[and
[had] such title to the BFE as was acquired by it from [insert name of vendor of the
BFE] pursuant to a xxxx of sale dated ___ [month] [year] (the “BFE Xxxx of
Sale”)].
The
Airframe, [Engines/Propulsion Systems] and
Parts are hereafter together referred to as the “Aircraft”.
The
Seller did this ___ day of [month] [year], sell, transfer and deliver all of its
above described rights, title and interest in and to the Aircraft [and the BFE]
to the following entity and to its successors and assigns forever, said Aircraft
[and the BFE] to be the property thereof:
CHINA
SOUTHERN AIRLINES COMPANY LIMITED
Bai Yun
Airport, Guangzhou 510405, People's Republic of China,
(the
“Buyer”)
The
Seller hereby warrants to the Buyer, its successors and assigns that it had
[(i)] good and lawful right to sell, deliver and transfer title to the
Aircraft to the Buyer and that there was conveyed to the Buyer good, legal and
valid title to the Aircraft, free and clear of all liens, claims, charges,
encumbrances and rights of others and that the Seller will warrant and defend
such title forever against all claims and demands whatsoever [and (ii) such
title to the BFE as Seller has acquired from [insert name of vendor of the
BFE] pursuant to the BFE Xxxx of Sale].
This Xxxx
of Sale shall be governed by and construed in accordance with the laws of
England
IN
WITNESS WHEREOF, the undersigned has caused this instrument to be executed by
its duly authorized representative this _____ day of [month], [year] in
[Blagnac/Hamburg/Tianjing].
AIRBUS
S.A.S.
|
Name:
|
Signature:
|
|
Title:
|
|
AGTA
CSN 2009
|
Exhibit
E
|
Page
1/1
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
F
EXHIBIT
F
SERVICE
LIFE POLICY
LIST
OF ITEMS
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
F
|
Page
1/3
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
F
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
|
***
|
|
2.2
|
***
|
|
2.3
|
***
|
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
F
|
Page
2/3
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
F
|
2.4
|
***
|
|
3
|
***
|
|
4
|
***
|
|
5
|
***
|
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
F
|
Page
3/3
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
EXHIBIT
G
TECHNICAL
DATA INDEX
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
1/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
TECHNICAL DATA
INDEX
Where
applicable data will be established in general compliance with ATA 100
Information Standards for Aviation Maintenance, and the applicable provisions
for digital standard of ATA Specification 2200 (iSpec2200).
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.
|
AVAILABILITY
(Avail)
Technical
Data can be made available :
|
-
|
ON-LINE
(ON) through the relevant service on
AirbusWorld,
|
and /
or
|
-
|
OFF-LINE
(OFF) through the most suitable means applicable to the size of the
concerned document (e.g CD or
DVD).
|
FORMAT
(Form)
Following
Technical Data formats may be used:
|
-
|
SGML
- Standard Generalized Xxxx-up Language, which allows further data
processing by the Buyer.
|
|
-
|
XML
– Extensible Xxxx-up Language, evolution of the SGML text format to cope
with WEB technology requirements.
|
XML is
used for data processing. Processed data shall be consulted through the e-doc
Viewer FOCT – Flight Operations Consultation Tool.
XML
data may be customized using Airbus customization tools (Flight Operations
Documentation Manager , ADOC) or the Buyer’s own XML based editing
tools.
|
-
|
CGM
– Computer Graphics Metafile, format of the interactive graphics
associated with the XML and /or SGML text file
delivery.
|
|
-
|
PDF
(PDF) - Portable Document Format allowing data
consultation.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
2/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
-
|
Advanced
Consultation Tool - refers to Technical Data consultation
application that offers advanced consultation & navigation
functionality compared to PDF. Both browser software & Technical Data
are packaged together.
|
|
-
|
P1
/ P2 - refers to manuals printed on one side or both sides of the
sheet.
|
|
-
|
CD-P
- refers to CD-Rom including Portable Document Format (PDF)
Data.
|
|
-
|
CD-XML
– Refers to CD-Rom including XML
data
|
|
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 applicable for all Airbus 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.
|
|
QUANTITY (Qty)
|
Self-explanatory
for physical media.
|
|
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)
referring to the Delivery Date of corresponding
Aircraft.
|
|
The
number of days indicated shall be rounded up to the next regular revision
release date.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
3/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
OPERATIONAL
MANUALS AND DATA
|
|||||||
|
Flight
Crew Operating Manual
|
FCOM
|
ON
|
XML
|
C
|
***
|
***
|
|
|
OFF
|
CD-XML
|
C
|
***
|
***
|
|||
|
Flight
Crew Training Manual
|
FCTM
|
ON
|
XML
|
C
|
***
|
***
|
FCTM
is a supplement to FCOM, a “Pilot’s guide” for use in training and in
operations
|
|
OFF
|
CD-XML
|
C
|
***
|
***
|
|||
|
Cabin
Crew Operating Manual
|
CCOM
|
ON
|
XML
|
C
|
***
|
***
|
LR
Aircraft: Basic for A340-500/-600 aircraft
A330-200/A340-300
: only for aircraft equipped with enhanced cabin (Mod 48819)
SA
Aircraft: Basic for A318 and for all A319/A320/A321 equipped
with new CIDS /FAP
CCOM
not available for aircraft with old CIDS re-installed (A319 Mod 34898,
A320 Mod 34856, A321 Mod 34997 )
|
|
OFF
|
CD-XML
|
C
|
***
|
***
|
|||
|
Flight
Manual
|
FM
|
ON
|
XML
|
C
|
***
|
***
|
|
|
OFF
|
CD-XML
|
C
|
***
|
***
|
|||
|
OFF
|
PDF
|
C
|
***
|
***
|
*PDF
secure format integrated in the FOCT viewer, used for loading on board
aircraft EFB, in agreement with Airworthiness
Authorities.
|
||
SA
= Single Aisle: A318/A319/A320/A321 / LR =
Long Range: A330/A340
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
4/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
OPERATIONAL
MANUALS AND DATA
|
|||||||
|
Master
Minimum Equipment List
|
MMEL
|
ON
|
XML
|
C
|
***
|
***
|
|
|
OFF
|
CD-XML
|
C
|
***
|
***
|
|||
|
Quick
Reference Handbook
|
QRH
|
ON
|
XML
|
C
|
***
|
***
|
|
|
OFF
|
CD-XML
|
C
|
***
|
***
|
|||
|
Trim
Sheet
|
TS
|
OFF
|
Electronic
format
|
C
|
***
|
***
|
Transferred
to the Buyer by electronic mail (MS Word or PDF or TIFF).
Note:
additional document provided by the Seller : IATA Airport Handing Manual /
AHM sections 515, 516, 560.
|
|
Weight
and Balance Manual
|
WBM
|
ON
|
XML
|
C
|
***
|
***
|
|
|
OFF
|
CD-XML
|
C
|
***
|
***
|
|||
|
Performance
Engineer's Programs
|
PEP
|
ON
|
Performance
Computation
Tool
|
C
|
***
|
***
|
A
collection of aircraft performance software tools in a common
interface.
|
|
OFF
|
Performance
Computation
Tool
on CD
|
C
|
***
|
***
|
|||
|
Performance
Programs Manual
|
PPM
|
OFF
|
CD-P
|
C
|
***
|
***
|
Explains
how to use the PEP & contains specific data for engineers, which are
not contained in the
FCOM
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
5/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
MAINTENANCE
AND ASSOCIATED MANUALS
|
|||||||
|
AirN@v
/ Maintenance , including :
Aircraft
Maintenance Manual - AMM
Illustrated
Parts Catalog (Airframe)- IPC
Illustrated
Parts Catalog ( Powerplant )- PIPC*
Trouble
Shooting Manual - TSM
Aircraft
Schematics Manual - ASM
Aircraft
Wiring Lists - AWL
Aircraft
Wiring Manual- AWM
Electrical
Standard Practices Manual-ESPM
|
AirN@v
/
Maintenance
|
ON
|
Advanced
Consultation
Tool
|
C
|
***
|
***
|
|
|
OFF
|
Advanced
Consultation
Tool
on DVD
|
C
|
***
|
***
|
Recommended
basic delivery quantity
*PIPC
is integrated in the SA aircraft IPC for IAE V2500 A1/A3 Engines and in
the LR A340-500/-600 aircraft IPC for XX Xxxxx 500 Engines.
For
other aircraft and engine types, to be supplied by Propulsion Systems
Manufacturer concurrently with the Airframe IPC.
|
||
|
AirN@v
/ Associated Data
Consumable
Material List – CML
Standards
Manual - SM
Electrical
Standard Practices Manual - ESPM
Tool
and Equipment Manual – TEM (*)
|
AirN@v
/
Associated
Data
|
ON
|
Advanced
Consultation
Tool
|
G
|
***
|
***
|
*
including Tool and Equipment Manual / Index & Support Equipment
Summary data
|
|
OFF
|
Advanced
Consultation
Tool on
DVD
|
G
|
***
|
***
|
|||
|
Technical
Follow-up
|
TFU
|
ON
|
PDF
|
E
|
***
|
***
|
TFU
for trouble shooting & maintenance, to be used with
AirN@v
|
|
Aircraft Maintenance
Manual
|
AMM
|
ON
|
PDF
|
C
|
***
|
***
|
*
PDF will be discontinued in 2010 after implementation of the
AirN@v / Maintenance Technical Data upgrade programme
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
|||
|
ON
|
SGML
|
C
|
***
|
***
|
Available
from the Technical Data Download Service on AirbusWorld
(Graphics in CGM, compliant with iSpec
2200 )
|
||
|
OFF
|
SGML
|
C
|
***
|
***
|
Effective
CD delivery will only take place at the time of explicit request from the
Buyer
|
||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
6/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
MAINTENANCE
AND ASSOCIATED MANUALS (Cont’d)
|
|||||||
|
Aircraft
Schematics Manual
|
ASM
|
ON
|
PDF
|
C
|
***
|
***
|
*
PDF will be discontinued in 2010 after implementation
of the AirN@v / Maintenance Technical Data upgrade
programme
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
|||
|
ON
|
SGML
|
C
|
***
|
***
|
Available
from the Technical Data Download Service on AirbusWorld
(Graphics in CGM, compliant with iSpec 2200
)
|
||
|
OFF
|
SGML
|
C
|
***
|
***
|
Effective
CD delivery will only take place at the time of explicit request from the
Buyer
|
||
|
Aircraft
Wiring List
|
AWL
|
ON
|
PDF
|
C
|
***
|
***
|
*
PDF will be discontinued in 2010 after implementation of the
AirN@v / Maintenance Technical Data upgradeprogramme.
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
|||
|
ON
|
SGML
|
C
|
***
|
***
|
Available
from the Technical Data Download Service on AirbusWorld (Graphics in CGM,
compliant with iSpec 2200
)
|
||
|
OFF
|
SGML
|
C
|
***
|
***
|
Effective
CD delivery will only take place at the time of explicit request from the
Buyer
|
||
|
Aircraft
Wiring Manual
|
AWM
|
ON
|
PDF
|
C
|
***
|
***
|
*
PDF will be discontinued in 2010 after implementation
of the AirN@v / Maintenance Technical Data upgrade
programme
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
|||
|
ON
|
SGML
|
C
|
***
|
***
|
Available
from the Technical Data Download Service on
AirbusWorld (Graphics in CGM, compliant with iSpec 2200
)
|
||
|
OFF
|
SGML
|
C
|
***
|
***
|
Effective
CD delivery will only take place at the time of explicit request from the
Buyer
|
||
|
Consumable
Material List
|
CML
|
OFF
|
SGML
|
G
|
***
|
***
|
Effective
delivery will only take place at the time of explicit request from the
Buyer
|
|
Ecam
System Logic Data
|
ESLD
|
ON
|
PDF
|
E
|
***
|
***
|
Used
for in-depth aircraft trouble shooting. Ref to SIL 31-033 for
details.
|
|
OFF
|
CD-P
|
E
|
***
|
***
|
|||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
7/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
|
MAINTENANCE
AND ASSOCIATED MANUALS (Cont’d)
|
||||||||
|
Electrical
Load Analysis
|
ELA
|
OFF
|
PDF/MS
Word
Excel
|
C
|
***
|
***
|
One
ELA supplied for each Aircraft, delivered one month after first Aircraft
Delivery PDF File + Office automation format RTF & Excel file
delivered on one single CD for ELA updating by the
Buyer
|
|
|
Electrical
Standard Practices Manual
|
ESPM
|
OFF
|
SGML
|
G
|
***
|
***
|
*Effective
CD delivery will only take place at the time of explicit request from the
Buyer
|
|
|
Electrical
Standard Practices booklet
|
ESP
|
OFF
|
P2*
|
G
|
***
|
***
|
*
Pocke size format booklet, which provides maintenance personnel with quick
and easy access for the identification of electrical equipment and the
required tooling.
|
|
|
Flight
Data Recording Parameter Library
|
FDRPL
|
OFF
|
Advanced
Consultation
Tool
on CD
|
E
|
***
|
***
|
||
|
Illustrated
Parts Catalog (Airframe)
|
IPC
|
ON
|
PDF
|
C
|
***
|
***
|
*
PDF will be discontinued in 2010 after implementation
of the AirN@v / Maintenance Technical Data upgrade
programme.
|
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
||||
|
ON
|
SGML
|
C
|
***
|
***
|
Available
from the Technical Data Download Service on AirbusWorld
(Graphics in CGM, compliant with iSpec
2200 )
|
|||
|
OFF
|
SGML
|
C
|
***
|
***
|
Effective
CD delivery will only take place at the time of explicit request from the
Buyer
|
|||
|
Illustrated
Parts Catalog (Powerplant)
|
PIPC
|
ON
|
PDF
|
C
|
***
|
***
|
Integrated
in the SA aircraft IPC for IAE V2500 A1/A3 Engines .
Integrated
in the LR A340-500/-600 aircraft IPC for XX Xxxxx 000
Engines.
*For
other aircraft and engine types, supplied by Propulsion Systems
Manufacturer concurrently with the Airframe IPC.
|
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
||||
|
AirN@v
/ Planning ,
including
Maintenance
Planning Document – MPD
|
AirN@v/
Planning
|
ON
|
Advanced
Consultation
Tool
|
E
|
***
|
***
|
In
addition to MPD in AirN@v consultable format, AirN@v / Planning includes
additional MPD files in the following downloadable formats: -
PDF format
-
MS XLS ( Excel) format
-
TSDF / Text Structured Data File format (specific ASCII for MIS and
Database upload )
- SGML
format for further processing
Life
Limited Parts information is included in the Airworthiness Limitation
Section (ALS)
|
|
|
OFF
|
Advanced
Consultation
Tool
on DVD
|
E
|
***
|
***
|
||||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
8/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
MAINTENANCE
AND ASSOCIATED MANUALS (Cont’d)
|
|||||||
|
Maintenance
Review Board Report – MRBR
Airworthiness
Limitation Section – ALS
|
MRBR
ALS
|
ON
|
PDF
|
E
|
***
|
***
|
The
latest revisions of individual MRB Report and ALS documents are
available shortly after approval on AirbusWorld Maintenance &
Engineering site, under “ Prepare Maintenance
Programme”, "Demonstrate compliance with airworthiness
limitations" tab, with aircraft operators being informed through a
dedicated OIT.
|
|
Tool
& Equipment Bulletins
|
TEB
|
ON
|
PDF
|
E
|
***
|
***
|
|
|
Tool
and Equipment Drawings
|
XXX
|
ON
|
Advanced
Consultation
Tool
|
E
|
***
|
***
|
These
drawings include the Seller’s and Suppliers’ equipment drawings, except
for the Seller’s and Suppliers’ proprietary items
|
|
AirN@v / Engineering ,
including:
Airworthiness
Directives - AD
European
Airworthiness Directives - EUAD
(
incl. French DGAC AD’s)
All
Operator Telex - AOT
Operator
Information Telex - OIT
Flight
Operator Telex - FOT
Modification
- MOD
Modification
Proposal - MP
Service
Bulletin - SB
Service
Information Letter - SIL
Technical
Follow-Up - TFU
Vendor
Service Bulletin - VSB
|
AirN@v/
Engineering
|
ON
|
Advanced
Consultation
Tool
|
C
|
***
|
***
|
AirN@v
Engineering is an electronic index used for identification of the
references and links between the Seller’s and Suppliers’ engineering
documents
|
|
OFF
|
Advanced
Consultation
Tool on
DVD
|
C
|
***
|
***
|
|||
|
Trouble
Shooting Manual
|
TSM
|
ON
|
PDF
|
C
|
***
|
***
|
*
PDF will be discontinued in 2010 after implementation
of the AirN@v / Maintenance Technical Data upgrade
programme
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
|||
|
ON
|
SGML
|
C
|
***
|
***
|
Available
from the Technical Data Download Service on
AirbusWorld (Graphics in CGM, compliant with iSpec 2200
)
|
||
|
OFF
|
SGML
|
C
|
***
|
***
|
Effective
CD delivery will only take place upon the Buyer’s express
request.
|
||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
9/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
STRUCTURAL
MANUALS
|
|||||||
|
AirN@v / Repair ,
including:
Structural
Repair Manual (*) - SRM
Non
Destructive Testing Manual - NTM
|
AirN@v
/
Repair
|
ON
|
Advanced
Consultation
Tool
|
E
|
***
|
***
|
AirN@v
/ Repair includes:
· For SA
aircraft, one specific SRM for each A318, A319, A320, A321, one
SA aircraft common NTM,
· For LR
aircraft, one SRM and NTM for A340-200/-300, one SRM and NTM
for A340-500/-600.
*Nacelle
repair data are integrated in the Airframe SRM for A318 PW6000 and
A340-500/-600 XX Xxxxx aircraft. For all other SA and LR
aircraft and engine types, the Nacelle SRM shall be supplied by the
relevant Propulsion System Supplier.
|
|
OFF
|
Advanced
Consultation
Tool
on DVD
|
E
|
***
|
***
|
|||
|
Structural
Repair Manual
|
SRM
|
ON
|
SGML
|
E
|
***
|
***
|
*Upon
request only.
|
|
OFF
|
SGML
|
E
|
***
|
***
|
|||
|
Non
Destructive Testing Manual
|
NTM
|
ON
|
SGML
|
E
|
***
|
***
|
*Upon
request only.
|
|
OFF
|
SGML
|
E
|
***
|
***
|
|||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
10/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
OVERHAUL
DATA
|
|||||||
|
AirN@v / Workshop,
including:
Component
Maintenance Manual Manufacturer - CMMM
Duct
Fuel Pipe Repair Manual - DFPRM
|
AirN@v
/
Workshop
|
ON
|
Advanced
Consultation
Tool
|
E
|
***
|
***
|
DFPRM
first issue in AirN@v / Workshop planned 2nd
half 2009
|
|
OFF
|
Advanced
Consultation
Tool
on DVD
|
E
|
***
|
***
|
|||
|
Component
Maintenance Manual Manufacturer
CMMM
|
CMMM
|
ON
|
SGML
|
E
|
***
|
***
|
*Upon
request only. Fallback solution to AirN@v / Workshop
|
|
OFF
|
SGML
|
E
|
***
|
***
|
|||
|
Component
Maintenance Manual Vendor
|
CMMV
|
OFF
|
CD-P
|
E
|
***
|
***
|
*
Vendor Supply in digital PDF format .
|
|
ON
|
PDF
|
E
|
***
|
***
|
Available
from the “Supplier Technical Documentation On-Line Service” in
AirbusWorld
|
||
|
Component
Documentation Status
|
CDS
|
OFF
|
CD
|
C
|
***
|
***
|
Revised
until 180 days after first Aircraft Delivery
|
|
Component
Evolution List
|
CEL
|
ON
|
PDF
|
G
|
***
|
***
|
|
|
OFF
|
CD-P
|
G
|
***
|
***
|
Delivered
as follow-on to
CDS.
|
||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
11/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
ENGINEERING
DOCUMENTS
|
|||||||
|
Mechanical
Drawings, including the Drawing Picture, Parts List / Parts
Usage
|
MD
|
ON
|
Advanced
Consultation
Tool
|
C
|
***
|
***
|
Seller
Installation, Assembly and Detailed part Drawings for Structure &
System installations, fitted on the Buyer’s fleet or Aircraft .
They cover the Aircraft “as designed”, ie in its original configuration at
first Aircraft Delivery.
Repair
drawings are supplied upon specific Buyer request.
Buyer’s
queries shall be issued in connection with an approved document: SB, SRM
or RAS (Repair Assessment Sheet)
Mechanical
Drawings include:
2D
Drawing sheets
Parts
List / Parts Usage (in PDF).
|
|
Standards
Manual
|
SM
|
ON
|
SGML
|
G
|
***
|
***
|
Effective
delivery will only take place at the time of explicit request from the
Buyer.
|
|
OFF
|
SGML
|
G
|
***
|
***
|
|||
|
Process
and Material Specification
|
PMS
|
ON
|
PDF
|
G
|
***
|
***
|
|
|
OFF
|
CD-P
|
G
|
***
|
***
|
|||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
12/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
MISCELLANEOUS
PUBLICATIONS
|
|||||||
|
Airplane
Characteristics for Airport Planning - AC
Maintenance
Facility Planning - MFP
|
AC/MFP
|
ON
|
PDF
|
E
|
***
|
***
|
Available
On-Line in AirbusWorld
|
|
OFF
|
CD-P
|
E
|
***
|
***
|
Grouped
on one single CD
Fallback
solution to the on-line AC / MFP
|
||
|
ATA
100 Index
|
ATI
|
ON
|
PDF
|
E
|
***
|
***
|
6
Digits ATA 100 Index
|
|
C@DETS
/Technical Data Training Courseware and Software
|
C@DETS
|
ON
|
Advanced
Consultation
Tool on
CD
|
G
|
***
|
***
|
Technical
Data self-tutorial training which provides basic familiarization tailored
for Maintenance and Engineering personnel.
It
is AirN@v Services oriented and available on AirbusWorld for downloading
by module as required.
|
|
OFF
|
Advanced
Consultation
Tool
|
G
|
***
|
***
|
|||
|
Aircraft
Recovery Manual
|
ARM
|
ON
|
PDF
|
E
|
***
|
***
|
|
|
OFF
|
CD-P
|
E
|
***
|
***
|
|||
|
Aircraft
Rescue & Firefighting Chart
|
ARFC
|
ON
|
PDF
|
E
|
***
|
***
|
Chart
can be downloaded from AirbusWorld either in TIFF or PDF
format
|
|
OFF
|
P1
|
E
|
***
|
***
|
Full
size charts, which are available in poster format (530 x 640
mm)
|
||
|
Cargo
Loading System Manual
|
CLS
|
ON
|
PDF
|
E
|
***
|
***
|
|
|
OFF
|
CD-P
|
E
|
***
|
***
|
One
CLS per delivered Aircraft
|
||
|
List
of Effective Technical Data
|
LETD
|
ON
|
PDF
|
C
|
***
|
***
|
The
LETD provides, for each Technical Data, information about:
-
Applicable issue and revision date,
-
Shipping information with search functions by manual or
delivery address
criteria,
-
Tracking of shipments through the Carrier Website.
|
|
List
of Radioactive and Hazardous Elements
|
LRE
|
ON
|
PDF
|
G
|
***
|
***
|
|
|
OFF
|
CD-P
|
G
|
***
|
***
|
|||
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
13/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
G
|
NOMENCLATURE
|
Abbr
|
Avail
|
Form
|
Type
|
Qty
|
Deliv
|
Comments
|
|
MISCELLANEOUS
PUBLICATIONS
|
|||||||
|
Live
Animal Transportation Calculation Tool
|
LATC
|
ON
|
Advanced
Calculation
Tool
|
E
|
***
|
***
|
Available
for A340-500/-600 aircraft .
Electronic
format, which includes a software tool to calculate the loads of various
live animals which can be transported in cargo compartments under known
environmental conditions
Remark
: LTM (Live Stock Transportation Manual) replaced by LATC, migration for
LR aircraft :Jul 09, for SA aircraft : Oct 09
|
|
Live
Animal Transportation Calculation Tool
|
LATC
|
OFF
|
Advanced
Calculation
Tool
on CD
|
E
|
***
|
***
|
|
|
Service
Bulletins
|
SB
|
ON
|
Advanced
Consultation
Tool
|
C
|
***
|
***
|
Full
SB content and SB search functions are available from AirN@v / Engineering
on AirbusWorld
|
|
OFF
|
CD-P
|
C
|
***
|
***
|
CD
available for simplified SBs only
|
||
|
Supplier
Product Support Agreements 2000
|
SPSA
|
ON
|
PDF
|
G
|
***
|
***
|
Contains
all SSC’s Supplier Support Conditions and current GCP 2000 Issue 04
Agreements ratified by Airbus Suppliers .
It
specifies :
-
Airbus Support Standards
-
The individual Suppliers’ contractual Support
commitments
|
|
Transportability
Manual
|
TM
|
OFF
|
CD-P
|
G
|
***
|
***
|
|
|
Vendor
Information Manual +
Aircraft
On Ground & Repair Guide
|
VIM
+
AOG
& RG
|
ON
|
Advanced
Consultation
Tool
|
G
|
***
|
***
|
Combined
Vendor Information Manual and Aircraft On Ground & Repair Guide. It
supplies information on Supplier Support locations, Repair Stations, stock
locations and distributors around the world for Airbus
Customers.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
G
|
Page
14/15
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
EXHIBIT
"H"
MATERIAL
SUPPLY
AND SERVICES
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
1/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
1.
|
GENERAL
|
|
1.1
|
Scope
of Material Support
|
|
1.1.1
|
This
Exhibit “H” defines the terms and conditions for the support services that
may be offered by the Seller to the Buyer in the following
areas:
|
|
-
|
Initial
provisioning data and
Material,
|
|
-
|
Replenishment
of Material,
|
|
-
|
Lease
of certain Seller Parts,
|
|
-
|
Loan
of Ground Support Equipment and Specific (To Type)
Tools,
|
|
-
|
Repair
of certain Seller Parts.
|
|
1.1.2
|
References
made to Articles shall refer to articles of this Exhibit "H" unless
otherwise specified.
|
|
1.1.3
|
Notwithstanding
the definition set forth in Clause 12.3.1 of the AGTA and for the
exclusive purpose of this Exhibit “H”, the term “Supplier” shall mean any
supplier providing any of the Material listed in Article 1.2.1 hereunder
(each a “Supplier
Part”).
|
|
1.2
|
Material
Categories
|
|
1.2.1
|
Material
covered by this Exhibit “H” is classified into the following categories
(hereinafter individually and collectively referred to as "Material"):
|
|
|
(i)
|
Seller
Parts (Seller's proprietary Material bearing a part number of the Seller
or Material 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;
|
|
|
(v)
|
Hardware
and standard material, when provided as a
package;
|
|
|
(vi)
|
Consumables
and raw material, when provided as a
package.
|
Material
covered under Articles 1.2.1 (v) and 1.2.1 (vi) is available only when supplied
as a package as part of the initial provisioning of Material.
|
1.2.2
|
Propulsion
Systems, engine exchange kits, their 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.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
2/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
1.3
|
Term
|
During a
period ***(the "Term"),
the Seller shall maintain, or cause to be maintained, a stock of Seller Parts as
defined in 1.2.1 (i) as the Seller deems reasonable and shall furnish at ***
prices Seller Parts adequate to meet the Buyer’s needs for maintenance of the
Aircraft.
The
Seller shall use its *** efforts to obtain a similar service from all Suppliers
of Supplier Parts as set forth under Articles 1.2.1 (ii) and (iii) that were
originally installed on the Aircraft at Delivery.
|
1.4
|
Airbus
Spares Support and Services
|
|
1.4.1
|
The
Seller has established its spares headquarters in Hamburg, Germany (the
"Airbus Spares
Center") and shall, during the Term, maintain, or have maintained
on its behalf, a central store of Seller
Parts.
|
|
1.4.2
|
The
Airbus Spares Center is operated twenty-four (24) hours per day, seven (7)
days per week.
|
|
1.4.3
|
For
efficient and rapid deliveries, the Seller and its Affiliates operate a
global network of regional satellite stores (“Regional Satellite
Stores”), a list of which may be communicated to the Buyer upon
request.
|
The
Seller reserves the right to effect deliveries from the Airbus Spares Center,
from any of the Regional Satellite Stores or from any other production or
Suppliers' facilities.
|
1.5
|
Customer
Order Desk
|
The
Seller has set up a dedicated “Customer Order Desk”, the main
functions of which are:
-
Management of order entries for all priorities, including AOG;
-
Management of order changes and cancellations;
-
Administration of Buyer’s routing and shipping instructions;
-
Administration of Material returns;
-
Clarification of delivery discrepancies;
-
Issuance of credit and debit Notes.
The Buyer
may communicate with the Customer Order Desk by means of telephone, fax, SITA
message, SPEC 2000, e-mail or via the Internet.
|
1.6
|
Customer
Spares Support Representative
|
The
Seller shall assign *** customer spares support representative based at the
Airbus Spares Center to assist with, and coordinate, spares support matters
between the Seller and the Buyer after signature of the relevant Purchase
Agreement for as long as one Aircraft covered under the relevant Purchase
Agreement is operated by the Buyer.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
3/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
1.7
|
Agreements
of the Buyer
|
|
1.7.1
|
The
Buyer agrees to purchase from the Seller or its licensee(s) (“Licensees”) the Seller
Parts required for the Buyer's own needs during the Term, provided that
the provisions of this Article 1.7 shall not in any way prevent the Buyer
from resorting to the Seller Parts stocks of other operators of the same
aircraft type or model or from purchasing Seller Parts from said operators
or from distributors, provided said Seller Parts have been originally
designed by the Seller and manufactured by the Seller or its
Licensee(s).
|
|
1.7.2
|
The
Buyer may manufacture, or have manufactured, for its own use and without
paying any license fee to the Seller, parts equivalent to Seller Parts
only:
|
|
1.7.2.1
|
after
expiration of the Term, if at such time the Seller Parts are out of
stock,
|
|
1.7.2.2
|
at
any time, to the extent that Seller Parts are needed to perform confirmed
aircraft on ground (“AOG”) repairs upon any
Aircraft delivered under the relevant Purchase Agreement and are not
available from the Seller, its Licensees or other approved sources 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,
|
|
1.7.2.3
|
in
those instances when a Seller Part is identified as "Local Manufacture" in
the Illustrated Parts Catalog
(IPC).
|
|
1.7.3.1
|
The
rights granted to the Buyer in Article 1.7.2 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.
|
|
1.7.3.2
|
Furthermore,
in the event of the Buyer manufacturing or having manufactured any parts,
subject to the conditions of Article 1.7.2, such manufacturing and any use
made of the manufactured parts shall be under the sole liability of the
Buyer and the consent given by the Seller shall not be construed as
express or implicit approval howsoever either of the Buyer or of the
manufactured parts.
|
It shall
further be the Buyer’s sole responsibility to ensure that such manufacturing is
performed in accordance with the relevant procedures and Aviation Authority
requirements.
THE
SELLER SHALL NOT BE LIABLE FOR, AND THE BUYER SHALL INDEMNIFY THE SELLER
AGAINST, ANY CLAIMS FROM ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT OR
NON-CONFORMITY OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY
MANUFACTURING OF ANY PART UNDERTAKEN BY THE BUYER, OR CAUSED TO BE UNDERTAKEN BY
THE BUYER, UNDER ARTICLE 1.7.2 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER
UNDER THIS EXHIBIT “H”, WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT,
OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR
OMISSIONS OF THE BUYER.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
4/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
1.7.4
|
The
Buyer shall allocate, or cause to be allocated, its own partnumber to any
part manufactured, or caused to be manufactured, in accordance with
Article 1.7.2 above. The Buyer shall under no circumstances be allowed to
use, or cause to be used, the Airbus partnumber of the Seller Part to
which such manufactured part is
equivalent.
|
|
1.7.5
|
Notwithstanding
any right provided to the Buyer under Article 1.7.2, the Buyer shall not
be entitled to sell or loan any part manufactured under the provisions of
Article 1.7.2 to any third party.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
5/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
2.
|
INITIAL PROVISIONING
AND REPLENISHMENT
|
|
2.1
|
Initial
Provisioning
|
|
2.1.1
|
Period
|
|
|
The
Initial Provisioning
Period is defined ***.
|
|
2.1.2
|
Pre-Provisioning
Meeting
|
|
2.1.2.1
|
The
Seller shall organize a pre-provisioning meeting (“Pre-Provisioning
Meeting”) at the Airbus Spares Center, or any other location as may
be mutually agreed, for the purpose of defining an acceptable schedule and
working procedure to accomplish the initial provisioning (hereinafter
“Initial
Provisioning”) of Material (the “Initial Provisioning
Material”).
|
During
the Pre-Provisioning Meeting, the Seller shall familiarize the Buyer with the
provisioning process, methods and formulae of calculation and
documentation.
|
2.1.2.2
|
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 Article 2.1.3
below.
|
|
2.1.3
|
Initial
Provisioning Conference
|
The
Seller shall organize an Initial Provisioning conference (“Initial Provisioning
Conference”) at the Airbus Spares Center.
At the
request of the Buyer, the Seller shall invite major Suppliers, as mutually
agreed upon during the Pre-Provisioning Meeting, to participate in the
conference.
Such
conference shall take place at the earliest *** after Manufacturer Serial Number
allocation, Buyer Furnished Equipment selection or Contractual Definition
Freeze, whichever occurs last.
|
2.1.4
|
Initial
Provisioning Data
|
|
2.1.4.1
|
Initial
Provisioning data elements generally in accordance with SPEC 2000, Chapter
1, ("Initial Provisioning
Data") for Material defined in Articles 1.2.1 (i) through 1.2.1
(iii) shall be supplied by the Seller to the Buyer in English language, in
a form, format and timeframe to be mutually agreed upon during the
Pre-Provisioning Meeting.
|
The
Seller shall have obtained from Suppliers agreements to prepare and issue for
their own products such Initial Provisioning Data as provided
above.
|
2.1.4.1.1
|
The
Initial Provisioning Data shall be revised ***, up to the end of the
Initial Provisioning Period.
|
|
2.1.4.1.2
|
The
Seller shall ensure that Initial Provisioning Data is provided 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
Material.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
6/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
2.1.4.1.3
|
Initial
Provisioning Data generated by the Seller and supplied to the Buyer shall
comply with the configuration of the Aircraft as documented *** before the
date of issue.
|
This
provision shall not cover:
|
|
-
|
Buyer
modifications not known to the
Seller,
|
|
|
-
|
other
modifications not approved by the Seller’s Aviation
Authority.
|
|
2.1.4.2
|
Supplier-Supplied
Data
|
Initial
Provisioning Data corresponding to Supplier Parts (both initial issue and
revisions) shall be transmitted to the Buyer through the Seller and/or the
corresponding Supplier, it is however agreed and understood by the Buyer that
the Seller shall not be responsible for the substance, accuracy and quality of
such data.
|
2.1.4.3
|
Supplementary
Data
|
The
Seller shall provide the Buyer with supplementary data to the Initial
Provisioning Data. This shall include Local Manufacture Tables (X-File), Ground
Support Equipment, Specific-to-type Tools (W-File) and a Pool Item Candidate
List (Y-File).
|
2.1.5
|
Commercial
Offer
|
Upon the
Buyer’s request, the Seller shall submit a commercial offer for Material as
defined in Articles 1.2.1 (i) through 1.2.1 (vi) mutually agreed as being
Initial Provisioning Material.
|
2.1.6
|
Delivery
of Initial Provisioning Material
|
|
2.1.6.1
|
During
the Initial Provisioning Period, Initial Provisioning Material shall
conform to the latest known configuration standard of the Aircraft for
which such Initial Provisioning Material is intended and to the Initial
Provisioning Data transmitted by the
Seller.
|
|
2.1.6.2
|
Provided
such orders are received by the Seller in accordance with the leadtime
published in the Seller’s Spare Parts Price Catalog, the Seller shall use
its reasonable efforts to deliver Initial Provisioning Material as per
Article 1.2.1 (i) of this Exhibit “H” against the Buyer’s orders and
according to the following
schedule:
|
|
|
(a)
|
at
least *** of the ordered quantity of each item for which the Buyer has
placed Initial Provisioning orders for Material defined in Article 1.2.1
(i) above, *** before Delivery of the first
Aircraft;
|
|
|
(b)
|
at
least *** of the ordered quantity of each item for which the Buyer has
placed Initial Provisioning orders for Material defined in Article 1.2.1
(i) above, *** before Delivery of the first
Aircraft;
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
7/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
|
(c)
|
***of
the ordered quantity of each item for which the Buyer has placed Initial
Provisioning orders for Material, as defined in Article 1.2.1 (i) above,
*** after Delivery of the first Aircraft. If said *** cannot be
accomplished, the Seller shall endeavor to have such items available at
its facilities for immediate supply, in case of an
AOG.
|
|
2.1.6.3
|
The
Buyer may, subject to the Seller's agreement, cancel or modify Initial
Provisioning orders placed with the Seller, with no cancellation charge,
provided such modification or cancellation occurs no later than the
published lead-time before the scheduled delivery of said
Material.
|
|
2.1.6.4
|
The
delivery of Material described in Articles 1.2.1 (ii) through (vi) shall
take place as set forth in Article 2.2
hereof.
|
|
2.1.7
|
Initial
Provisioning Data for ***
|
If the
Seller has granted the Buyer ***
|
2.1.8
|
Buy-Back
|
|
2.1.8.1
|
Buy-Back
of Obsolete Parts
|
The
Seller agrees to buy back unused Seller Parts as per Article 1.2.1 (i) (“Buy Back”) which become
obsolete before Delivery of the first Aircraft to the Buyer as a result of
mandatory modifications required by the Seller's Aviation Authorities, subject
to the following:
|
|
a)
|
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, modified or
repaired to satisfy the revised
standard;
|
|
|
b)
|
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;
|
|
|
c)
|
The
Seller shall use its reasonable efforts to obtain for the Buyer the same
protection from Suppliers for Supplier
Parts.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
8/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
2.1.8.2
|
Buy-Back
Period and Buy-Back of Initial Provisioning Surplus
Material
|
|
|
a)
|
The
Buy-Back Period is defined as the period starting *** Delivery of the
first Aircraft to the Buyer.
|
|
|
b)
|
At
any time during the Buy-Back Period, the Buyer shall have the right to
return to the Seller any Seller Parts as per Article 1.2.1 (i) or Supplier
Parts as per Article 1.2.1 (ii), subject to the conditions defined
hereunder.
|
|
|
c)
|
A
part as set forth in Article b) above shall be eligible for Buy-Back
if:
|
|
|
i)
|
The
part is unused and undamaged and is accompanied by the Seller's original
documentation (tag, certificates);
|
|
|
ii)
|
The
Seller originally provided the Buyer with a positive Initial Provisioning
recommendation for the part at the time of purchase based upon a maximum
protection level of *** and a maximum transit time of
***;
|
|
|
iii)
|
The
part was purchased for Initial Provisioning purposes by the Buyer directly
from the Seller;
|
|
|
iv)
|
The
part is not shelf life limited, nor does it contain any shelf life limited
components with less than *** shelf life remaining when
returned;
|
|
|
v)
|
The
parts are returned to the Seller by the Buyer so the parts have
effectively been received and accepted by the Seller before the end of the
Buy-Back Period.
|
|
|
d)
|
If
a part is accepted for Buy-Back, the Seller shall credit the Buyer as
follows:
|
|
-
|
For
Seller Parts as per Article 1.2.1 (i) the Seller shall credit the Buyer
***of the price originally
paid;
|
|
-
|
For
Supplier Parts as per Article 1.2.1 (ii) the Seller shall credit the Buyer
*** of the original Supplier list price valid at the time of order
placement.
|
|
|
e)
|
In
the event of the Buyer electing to procure Material in excess of the
Seller's recommendation, the Buyer shall notify the Seller thereof in
writing, with due reference to the present Article. The Seller's
acknowledgement and agreement in writing shall be necessary before any
Material in excess of the Seller's Initial Provisioning recommendation
shall be considered for Buy-Back.
|
|
|
f)
|
It
is expressly understood and agreed that all credits described in Article
2.1.8.2 (d) shall be provided by the Seller to the Buyer exclusively by
means of credit notes to the Buyer's spares account with the
Seller.
|
|
|
g)
|
Transportation
costs for the agreed return of Material under this Article 2.1.8.2 shall
be borne by the Seller, provided that the Buyer has used its reasonable
efforts to reduce the cost of
transportation.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
9/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
2.2
|
REPLENISHMENT
AND DELIVERY
|
|
2.2.1
|
General
|
For the
purpose of clarification, it is expressly stated that the provisions of
Article 2.2.2 do not apply to Initial Provisioning Data and Material as
described in Article 2.1. Delivery conditions shall be as set forth in Article
4.1.1.
|
2.2.2
|
Lead
times
|
In
general, lead times shall be in accordance with the provisions of the latest
edition of the "World Airlines and Suppliers' Guide".
|
2.2.2.1
|
Seller
Parts as per Article 1.2.1 (i) listed in the Seller's Spare Parts Price
Catalog or on AirbusSpares can be dispatched within the lead times
published in the Seller’s Spare Parts Price
Catalog.
|
Lead
times for Seller Parts as per Article 1.2.1 (i), which are not published in the
Seller's Spare Parts Price Catalog or on AirbusSpares, shall be quoted upon
request.
|
2.2.2.2
|
Material
defined in Articles 1.2.1 (ii) through 1.2.1 (vi) can be dispatched within
the Supplier's lead time augmented by the Seller's own order and delivery
administration time.
|
|
2.2.2.3
|
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 critically required parts (the
“Expedite
Service”).
|
2.2.2.3.1
|
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 an expedite order received from the Buyer
within:
|
|
|
-
|
four
(4) hours after receipt of an AOG (Aircraft On Ground)
Order,
|
|
|
-
|
twenty-four
(24) hours after receipt of a Critical Order (imminent AOG or work
stoppage),
|
|
|
-
|
***
after receipt of an Expedite Order (urgent stock
replenishment).
|
|
2.2.2.3.2
|
The
Seller shall deliver Material requested by the Buyer by telephone on an
AOG basis only if such request is confirmed by a subsequent purchase order
from the Buyer by the end of the next Business
Day.
|
|
2.2.3
|
Delivery
Status
|
The
Seller shall make available to the Buyer on the AirbusSpares a “Delivery Status
Report”.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
10/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
2.2.4
|
Shortages,
Overshipments, Non-Conformity in
Orders
|
|
2.2.4.1
|
The
Buyer shall, *** pursuant to a purchase order, advise the
Seller:
|
|
|
a)
|
of
any alleged shortages or
overshipments,
|
|
|
b)
|
of
any non-conformities of delivered
Material.
|
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 delivery.
|
2.2.4.2
|
In
the event of the Buyer reporting overshipments or non-conformity to the
specifications within the period defined in Article 2.2.4.1 the Seller
shall, if the Seller recognizes such overshipment or non-conformity,
either replace the concerned Material or credit the Buyer for the returned
Material, if the Buyer chooses to return the Material subject of an
overshipment or non-conformity. ***
|
|
2.2.5
|
Packaging
|
All
Material shall be packaged in accordance with ATA 300
Specification.
|
2.2.6
|
Cessation
of Deliveries
|
The
Seller reserves the right to restrict, stop or otherwise suspend deliveries if
the Buyer fails to meet its obligations defined in Articles 4.2 through
4.4.
|
2.2.7
|
Material
Consumption Data
|
The Buyer
undertakes to provide periodically to the Seller a quantitative list of the
Material used for maintenance and overhaul of the Aircraft. Such list shall
cover Material used for both scheduled and unscheduled maintenance. The format
and frequency of this list shall be as mutually agreed between the Seller and
the Buyer during the Initial Provisioning Conference.
|
2.3
|
Warranties
|
|
2.3.1
|
Seller
Parts
|
Subject
to the limitations and conditions as hereinafter provided, the Seller warrants
to the Buyer that all Seller Parts as per Article 1.2.1 (i) 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 arising from failure to conform to the applicable
specification for such part.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
11/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
2.3.2
|
Warranty
Period
|
|
2.3.2.1
|
The
warranty period for Seller Parts is *** for new Seller Parts and *** for
used Seller Parts from delivery of such parts to the
Buyer.
|
|
2.3.2.2
|
Whenever
any Seller Part, which contains a defect for which the Seller is liable
under Clause 2.3, has been corrected, replaced or repaired pursuant to the
terms of this Clause 2.3, the period of the Seller's warranty with respect
to such corrected, repaired or replacement Seller Part, whichever the case
may be, shall be the remaining portion of the original warranty or
***.
|
|
2.3.3
|
Buyer's
Remedy and Seller's Obligation
|
The
Buyer's remedy and Seller's obligation and liability under this Article 2.3 are
limited to the repair, replacement or correction, at the Seller's expense and
option, of any Seller Part that is defective.
The
Seller may alternatively furnish to the Buyer’s account with the Seller a credit
equal to the price at which the Buyer is entitled to purchase a replacement for
the defective Seller Part.
The
provisions of Clauses 12.1.5 through 12.1.11 of the AGTA shall apply to this
Article 2.3 of this Exhibit "H".
|
2.3.4
|
Supplier
Parts
|
With
respect to Supplier Parts to be delivered to the Buyer under this Exhibit H, the
Seller agrees to transfer to the Buyer any warranties which the Seller may have
obtained from the corresponding Suppliers.
|
2.3.5
|
Waiver,
Release and Renunciation
|
THE
WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER (AS DEFINED HEREIN FOR THE
PURPOSES OF THIS EXHIBIT H) AND REMEDIES OF THE BUYER SET FORTH IN THIS ARTICLE
2.3 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, CONTRACT OR OTHERWISE, WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT OF ANY KIND, IN ANY MATERIAL AND/OR SERVICES DELIVERED
UNDER THIS AGTA AND/OR THE RELEVANT PURCHASE AGREEMENT, INCLUDING BUT NOT
LIMITED TO:
|
|
A.
|
ANY
WARRANTY AGAINST HIDDEN DEFECTS;
|
|
|
B.
|
ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS;
|
|
|
C.
|
ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OR TRADE;
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
12/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
|
D.
|
ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN
TORT, WHETHER OR NOT ARISING FROM THE SELLER’S NEGLIGENCE, ACTUAL OR
IMPUTED; AND
|
|
|
E.
|
ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, MATERIAL, LEASED
PART, SOFTWARE, DATA OR SERVICES DELIVERED UNDER THIS AGTA AND/OR THE
RELEVANT PURCHASE AGREEMENT, FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR
ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES;
|
PROVIDED
THAT IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE
HELD UNLAWFUL OR OTHERWISE INEFFECTIVE THE REMAINDER OF THIS AGTA AND OF THE
RELEVANT PURCHASE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
FOR THE
PURPOSES OF THIS ARTICLE 2.3.5, THE “SELLER” SHALL BE UNDERSTOOD TO INCLUDE THE
SELLER, ANY OF ITS SUPPLIERS, SUBCONTRACTORS, AND AFFILIATES.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
13/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
3.
|
OTHER
MATERIAL SUPPORT
|
|
3.1
|
Seller
Parts Leasing
|
|
3.1.1
|
General
|
The
Seller offers the Buyer the option to lease Seller Parts as listed in Appendix A
to this Exhibit “H” (hereinafter collectively "Leased Parts" or individually
a "Leased
Part").
For the
purposes of this Article 3.1, the term "Lessor" refers to the Seller
and the term "Lessee"
refers to the Buyer.
|
3.1.1.1
|
The
terms and conditions of the lease of Leased Parts as set forth in this
Article 3.1 shall be supplemented by the conditions as published annually
by the Lessor in the ”Airbus Spare Parts Price
Catalogue and Repair Guide”.
|
|
3.1.1.2
|
The
Lessor shall provide the Lessee with copies of the current version of such
Airbus Proprietary Parts Repair Guide on an annual
basis.
|
|
3.1.1.3
|
The
terms and conditions set out in said document shall prevail over all other
terms and conditions appearing on any order form or other document
pertaining to Leased Parts, with the exception of this Article 3.1, which,
for the avoidance of doubt, shall prevail in the event of any
inconsistency between this Article and the Airbus Proprietary Parts Repair
Guide.
|
|
3.1.1.4
|
Additional
Seller Parts not listed in Appendix A to this Exhibit “H” may be available
for lease by the Lessor to the Lessee under terms and conditions as
described in the latest version of the Airbus Proprietary Parts Repair
Guide.
|
|
3.1.1.5
|
Capitalized
terms used in this Article 3.1 and not otherwise defined in this Exhibit
“H” shall have the meanings assigned thereto in the Airbus Proprietary
Parts Repair Guide.
|
|
3.1.2
|
Title
|
Title to
each Leased Part shall remain with the Lessor at all times unless the Lessee
exercises its option to purchase, in which case title shall pass to the Lessee
upon receipt by the Lessor of the payment for the purchased Leased
Part. The terms and conditions of the purchasing of said Leased Parts
shall be as published by the Lessor in the then current version of the Airbus
Proprietary Parts Repair Guide.
|
3.1.3
|
Warranties
|
|
3.1.3.1
|
The
Lessor warrants that each Leased Part shall at the time of delivery be
free from defects in material and workmanship that could materially impair
the utility of the Leased Part.
|
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
14/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
3.1.3.2
|
Warranty
and Notice Periods
|
The
Lessee's remedy and the Lessor's obligation and liability under this Article
3.1.3, with respect to each defect, are conditional upon:
|
|
(i)
|
the
defect having become apparent to the Lessee within the Lease Period;
and
|
|
|
(ii)
|
the
Lessee returning as soon as practicable to the return location specified
in the applicable Lease, or such other place as may be mutually agreed
upon, the Leased Part claimed to be defective;
and
|
|
|
(iii)
|
the
Lessor having received written notice of the defect from the Lessee within
thirty (30) days after the defect became apparent to the Lessee, with
reasonable proof that the claimed defect is due to a matter embraced
within the Lessor's warranty under this Article 3.1.3 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 Aviation Authority requirements and the Lessor's
applicable written instructions.
|
|
3.1.3.3
|
Lessee's
Remedy and Lessor's Obligation
|
The
Lessee's remedy and the Lessor's obligation and liability under this Article
3.1.3 are limited to the repair or correction of any Leased Part in
which a defect appears, or, as may be mutually agreed, the replacement of such
Leased Part with a similar part free from defect.
Any
replacement part furnished under this Article 3.1.3.3 shall be deemed to be the
Leased Part so replaced.
|
3.1.3.4
|
Suspension
and Transportation Costs
|
|
3.1.3.4.1
|
If
a Leased Part covered by this Article 3.1.3 is found to be defective, the
Lease period as defined under the Airbus Proprietary
Parts Repair Guide (the “Lease Period”) and the
Lessee's obligation to pay rental charges shall be suspended from the date
upon 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.
|
|
3.1.3.4.2
|
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.
|
|
3.1.3.5
|
Wear
and Tear
|
Normal
wear and tear and the need for regular maintenance and overhaul shall not
constitute a defect or non-conformity under this Article 3.1.3.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
15/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
3.1.3.6
|
Waiver,
Release and Renunciation
|
It is
agreed that Article 2.3.5 hereof “Waiver, Release and Renunciation” shall apply
to the Material support to be provided under the present Article
3.1.
|
3.2
|
Tools
and Ground Support Equipment
|
The
Seller shall provide the Buyer with a range of Ground Support Equipment and
Tools, as defined in 1.2.1 (iv), support services including:
|
|
-
|
Sale
of single tools;
|
|
|
-
|
Sale
of tool packages;
|
|
|
-
|
Loan
of tooling for Airbus Aircraft.
|
The terms
and conditions applicable to such services shall be as published by the Seller
on an annual basis in its “Tools for Loan Catalog”. The Seller shall provide the
Buyer with copies of this publication on an annual basis.
|
3.3
|
Seller
Parts Repair
|
The
Seller may offer the Buyer a service whereby the Seller shall manage the repair
of Seller Parts as defined in Article 1.2.1 (i) above.
The full
terms, conditions and guarantees for the repair of said Seller Parts shall be as
published annually by the Seller in its ”Airbus Spare Parts Price Catalogue and
Repair Guide”.
|
4.
|
COMMERCIAL
CONDITIONS
|
|
4.1
|
Price
|
|
4.1.1
|
All
quoted Material prices shall be:
|
|
|
-
|
Free
Carrier (FCA) Airbus Spares Center;
|
|
|
-
|
Free
Carrier (FCA) Seller’s Regional Satellite
Stores;
|
|
|
-
|
Ex
Works (EXW) Seller’s or Supplier’s facility for deliveries from any other
Seller or Supplier facilities.
|
At the
request of the Buyer, the Seller can arrange and manage the delivery of Material
to the Buyer’s facilities on a Delivered Duty Unpaid (DDU) basis. The terms and
conditions of such a service shall be subject to a separate agreement to be made
between the Buyer and Seller.
The terms
Free Carrier (FCA), Ex Works (EXW) and Delivered Duty Unpaid (DDU) are as
defined by publication n° 560 of the International
Chamber of Commerce, published in January 2000.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
16/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
4.1.2
|
Notwithstanding
the provisions of Article 2.1.5 above for Initial Provisioning, all prices
shall be the Seller's sales prices valid on the date of receipt of the
order (subject to reasonable quantities and delivery time) and shall be
expressed in US Dollars. Invoices for freight charges and other delivery
services shall be in Euros.
|
|
4.1.3
|
The
prices of Seller Parts shall be as set forth in the then current Seller's
Spare Parts Price Catalog and shall be firm for each calendar year. The
Seller however reserves the right to revise the prices of said Seller
Parts during the course of the calendar year in case of any of the
following:
|
|
|
-
|
significant
revision in the manufacturing costs and purchase price of
materials,
|
|
|
-
|
significant
variation of exchange rates,
|
|
|
-
|
significant
error in the estimation or expression of any
price.
|
|
4.1.4
|
The
Seller’s prices for all other Material shall be the Supplier’s list prices
valid on the date of receipt of the order, supplemented by the Seller's
handling charge. The percentage of such handling charge shall vary with
the Material's value and shall be determined on a per item
basis.
|
|
4.2
|
Payment
Procedures and Conditions
|
All
payment under this Exhibit “H” shall be made in accordance with the terms and
conditions set forth in the then current Seller Parts Price Catalog and Repair
Guide.
|
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 Buyer’s current
and/or expected payment obligations.
|
4.4
|
Title
|
With the
exception of Material to be supplied under Article 3 above, title to any
Material purchased under this Exhibit "H" shall remain with the Seller until
full payment of the invoices and interest thereon, if any, has been received by
the Seller.
The Buyer
hereby undertakes that Material, 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 favour of any third party.
|
5.
|
EXCUSABLE
DELAY
|
Clause
10.1 of the AGTA shall apply to all Material support provided under this Exhibit
“H”.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
17/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
|
6.
|
TERMINATION
OF SPARES PROCUREMENT COMMITMENTS
|
|
6.1
|
In
the event of the AGTA and/or the relevant Purchase Agreement being
terminated with respect to any Aircraft due to causes provided for in
Clauses 10, 11 or 20 of the AGTA, such termination may also affect the
terms of this Exhibit "H" to the extent set forth in Article 6.2
below.
|
|
6.2
|
Any
termination under Clauses 10, 11 or 20 of the AGTA shall discharge the
parties of all obligations and liabilities hereunder with respect to
undelivered spare parts, services, data or other items to be purchased
hereunder and which are applicable to those Aircraft for which the AGTA
and/or the relevant Purchase Agreement has been terminated. Unused
Material in excess of the Buyer's requirements due to such Aircraft
cancellation may be repurchased by the Seller at the Seller’s option as
provided for in Article 2.1.8.2.
|
|
7.
|
INCONSISTENCY
|
In the
event of any inconsistency between this Exhibit “H” and the “Spare Parts Price
Catalog” or the “Airbus Proprietary Parts Repair Guide” or the “Tools for Loan
Catalog” or any order placed by the Buyer, this Exhibit “H” shall prevail to the
extent of such inconsistency.
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
18/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
H
APPENDIX "A" TO ARTICLE 3.1 OF EXHIBIT
“H”
SELLER
PARTS AVAILABLE FOR LEASING
***
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
H
|
Page
19/19
|
|
CT0803291
|
Private
& Confidential
|
EXHIBIT
I
EXHIBIT
I
***
*** This
information is subject to confidential treatment and has been omitted and filed
separately with the Commission.
|
AGTA
CSN 2009
|
Exhibit
I
|
Page
1/1
|
|
CT0803291
|
Private
& Confidential
|
LETTER AGREEMENT
1
_________________________,
2010
CHINA
SOUTHERN AIRLINES COMPANY LIMITED
Bai Yun
Airport,
Guangzhou
510405
People's
Republic of China
Subject : Miscellaneous
CHINA
SOUTHERN AIRLINES COMPANY LIMITED (the "Buyer"), AIRBUS S.A.S. (the
"Seller") and CHINA
SOUTHERN AIRLINES GROUP IMPORT AND EXPORT TRADING CORP., LTD. (the "Consenting Party") have
entered into an aircraft general terms agreement (“AGTA”) dated as of even date
herewith, which covers the manufacture and the sale by the Seller and the
purchase by the Buyer of the Aircraft.
Capitalized
terms used herein and not otherwise defined in this Letter Agreement shall have
the meanings assigned thereto in the AGTA.
Both
Parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said AGTA and shall be governed by
all its provisions, as such provisions have been specifically amended pursuant
to this Letter Agreement.
If there
is any inconsistency between the AGTA and this Letter Agreement, the latter
shall prevail to the extent of such inconsistency.
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
LA
1
|
Page
1/7
|
|
XX0000000
|
Private
& Confidential
|
LETTER AGREEMENT
1
|
1
|
Clause
5: PAYMENTS
|
|
1.1
|
In
Clause 5.1 of the AGTA, the Parties agree to
replace:
|
QUOTE
or to
such other account as may be designated by the Seller
UNQUOTE
with
QUOTE
***
UNQUOTE
|
1.2
|
The
Parties agree to delete Clause 5.5 of the AGTA in its entirety and replace
it with the following:
|
QUOTE
|
5.5
|
***
|
UNQUOTE
|
1.3
|
The
Parties agree to delete Clause 5.7 of the AGTA in its entirety and replace
it with the following:
|
QUOTE
|
5.7
|
***
|
UNQUOTE
|
1.4
|
The
Parties agree to delete Clause 5.10 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
|
5.10
|
***
|
UNQUOTE
|
1.5
|
The
Parties agree to delete Clause 5.11 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
|
5.11
|
***
|
|
5.11.2
|
***
|
UNQUOTE
|
2
|
Clause
6: MANUFACTURE PROCEDURE –
INSPECTION
|
The
Parties agree to add the following sentence to Clause 6.3 of the
AGTA:
QUOTE
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
LA
1
|
Page
2/7
|
|
XX0000000
|
Private
& Confidential
|
LETTER AGREEMENT
1
***
UNQUOTE
|
3
|
Clause
7: CERTIFICATION
|
The
Parties agree to delete Clause 7.3.1 of the AGTA in its entirety and replace it
with the following:
QUOTE
***
UNQUOTE
|
4
|
Clause
8: BUYER'S TECHNICAL ACCEPTANCE
|
|
4.1
|
The
Parties agree to delete Clause 8.1.2 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
***
UNQUOTE
|
4.2
|
The
Parties agree to add the following Clause to the
AGTA:
|
QUOTE
|
8.1.3
|
***
|
UNQUOTE
|
4.3
|
The
Parties agree to delete Clause 8.2.2 (ii) of the AGTA in its entirety and
replace it with the following
|
QUOTE
***
UNQUOTE
|
4.4
|
The
Parties agree to delete Clause 8.4 of the AGTA in its entirety and replace
it with the following:
|
QUOTE
8.4
***
UNQUOTE
|
5
|
Clause
9: DELIVERY
|
|
5.1
|
The
Parties agree to delete Clause 9.1.2 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
|
9.1.2
|
***
|
UNQUOTE
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
LA
1
|
Page
3/7
|
|
XX0000000
|
Private
& Confidential
|
LETTER
AGREEMENT 1
|
5.2
|
The
Parties agree to delete Clause 9.3.2 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
|
9.3.2
|
***
|
UNQUOTE
|
6
|
Clause
10: EXCUSABLE DELAY
|
The
Parties agree to delete Clauses 10.3, 10.4 of the AGTA in their entirety and
replace them with the following:
QUOTE
|
10.3
|
***
|
|
10.3.1
|
***
|
|
10.3.2
|
***
|
|
10.3.3
|
***
|
|
10.4
|
***
|
UNQUOTE
|
7
|
Clause
11: NON-EXCUSABLE DELAY
|
|
7.1
|
The
Parties agree to delete Clauses 11.1 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
|
11.1
|
***
|
UNQUOTE
|
7.2
|
The
Parties agree to delete Clauses 11.3 of the AGTA in its entirety and
replace it with the following:
|
QUOTE`
|
11.3
|
***
|
UNQUOTE
|
8
|
Clause
18: BUYER FURNISHED EQUIPMENT
|
|
8.1
|
The
Parties agree to delete Clauses 18.5 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
|
18.5
|
***
|
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
LA
1
|
Page
4/7
|
|
XX0000000
|
Private
& Confidential
|
LETTER AGREEMENT
1
|
18.5.1
|
***
|
|
18.5.2
|
***
|
|
18.5.3
|
***
|
UNQUOTE
|
8.2
|
The
Parties agree to add the following Clause to the
AGTA:
|
QUOTE
|
18.6
|
***
|
UNQUOTE
|
9
|
Clause
20 : TERMINATION
|
|
9.1
|
The
Parties agree to add the following sentence at the end of Clause 20.1 of
the AGTA:
|
QUOTE
***
UNQUOTE
|
9.2
|
The
Parties agree to delete Clause 20.2 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
|
20.2
|
***
|
UNQUOTE
|
9.3
|
The
Parties agree to delete the first paragraph of Clause 20.3 of the AGTA and
replace it with the following:
|
QUOTE
***
UNQUOTE
|
9.4
|
The
Parties agree to delete Clause 20.4 of the AGTA in its entirety and
replace it with the following
|
QUOTE
|
20.4
|
***
|
UNQUOTE
|
10
|
Clause
21: ASSIGNMENTS AND TRANSFERS
|
The
Parties agree to delete sub-clause 21.1 of the AGTA in its entirety and replace
it with the following
QUOTE
|
21.1
|
***
|
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
LA
1
|
Page
5/7
|
|
XX0000000
|
Private
& Confidential
|
LETTER AGREEMENT
1
|
21.1.1
|
***
|
|
21.1.2
|
***
|
UNQUOTE
|
11
|
Clause
22 : MISCELLANEOUS PROVISIONS
|
In Clause
22.12 of the AGTA, the Parties agree to replace:
QUOTE
***
UNQUOTE
With:
QUOTE
***
UNQUOTE
|
12
|
Assignment
|
Notwithstanding
any other provision of this Letter Agreement, the AGTA or the Purchase
Agreement, this Letter Agreement and the rights and obligations of the Buyer
herein shall not be assigned or transferred in any manner, and any attempted
assignment or transfer in contravention of the provisions of this Clause shall
be void and of no force or effect.
|
13
|
Confidentiality
|
This
Letter Agreement (and its existence) or any data exchanged between the Buyer and
the Seller for the fulfilment of their respective obligations under this Letter
Agreement 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 auditors, legal or tax advisors for the purpose of implementation
hereof.
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
LA
1
|
Page
6/7
|
|
XX0000000
|
Private
& Confidential
|
LETTER AGREEMENT
1
If the
foregoing correctly sets forth our understanding, please execute three (3)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
|
Agreed
and accepted,
|
Agreed
and accepted,
|
|
|
For
and on behalf of
|
For
and on behalf of
|
|
|
CHINA
SOUTHERN AIRLINES
|
AIRBUS
S.A.S.
|
|
|
COMPANY
LIMITED
|
||
|
Name
:
|
Name
:
|
|
|
Title
:
|
Title
:
|
|
|
Witnessed
and acknowledged,
|
||
|
For
and on behalf of
|
||
|
CHINA
SOUTHERN AIRLINES GROUP
|
||
|
IMPORT
AND EXPORT TRADING CORP., LTD.
|
||
|
Name
:
|
||
|
Title
:
|
||
*** This information is subject to confidential treatment and has been omitted and filed separately with the Commission.
|
AGTA
CSN 2009
|
LA
1
|
Page
7/7
|
|
XX0000000
|
Private
& Confidential
|
LETTER AGREEMENT
2
_________________________,
2010
CHINA
SOUTHERN AIRLINES COMPANY LIMITED
Bai Yun
Airport,
Guangzhou
510405
People's
Republic of China
Subject : Customer
Support
CHINA
SOUTHERN AIRLINES COMPANY LIMITED (the "Buyer"), AIRBUS S.A.S. (the
"Seller") and CHINA
SOUTHERN AIRLINES GROUP IMPORT AND EXPORT TRADING CORP., LTD. (the "Consenting Party") have
entered into an aircraft general terms agreement (“AGTA”) dated as of even date
herewith, which covers the manufacture and the sale by the Seller and the
purchase by the Buyer of the Aircraft.
Capitalized
terms used herein and not otherwise defined in this Letter Agreement shall have
the meanings assigned thereto in the AGTA.
Both
Parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said AGTA and shall be governed by
all its provisions, as such provisions have been specifically amended pursuant
to this Letter Agreement.
If there
is any inconsistency between the AGTA and this Letter Agreement, the latter
shall prevail to the extent of such inconsistency.
|
AGTA
CSN 2009
|
LA
2
|
Page
1/5
|
|
XX0000000
|
LETTER AGREEMENT
2
|
1
|
Clause 12 : WARRANTIES
AND SERVICE
LIFE POLICY
|
|
1.1
|
The
Parties agree to delete the first paragraph of clause 12.1.4.3 of the AGTA
in its entirety and replace it with the
following:
|
|
|
QUOTE
|
|
|
***
|
|
|
UNQUOTE
|
|
1.2
|
The
Parties agree to delete clause 12.1.5 (ii) of the AGTA in its entirety and
replace it with the following:
|
|
|
QUOTE
|
***
|
|
UNQUOTE
|
|
1.3
|
The
Parties agree to delete clause 12.1.6.2 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
***
UNQUOTE
|
1.4
|
The
Parties agree to delete clause 12.1.6.3 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
***
UNQUOTE
|
1.5
|
The
Parties agree to delete clause 12.1.6.4 of the AGTA in its entirety and
replace it with the following:
|
QUOTE
***
UNQUOTE
|
1.6
|
The
Parties agree to add the following sentence to Clause 12.1.6.6 of the
AGTA:
|
QUOTE
***
UNQUOTE
|
1.7
|
In
clause 12.1.7.2 of the AGTA, the Parties agree to
replace:
|
QUOTE
***
UNQUOTE
With:
QUOTE
***
UNQUOTE
|
AGTA
CSN 2009
|
LA
2
|
Page
2/5
|
|
XX0000000
|
LETTER AGREEMENT
2
|
1.8
|
The
Parties agree to add the following sentence to clause 12.1.7.6 of the
AGTA:
|
QUOTE
***
UNQUOTE
|
1.9
|
The
Parties agree to add the following sentence to clause 12.3.1.3 of the
AGTA:
|
QUOTE
***
UNQUOTE
|
1.10
|
The
Parties agree to add the following sentence to clause 12.4.1 of the
AGTA:
|
QUOTE
***
UNQUOTE
|
3
|
Clause 15 : SELLER
REPRESENTATIVES SERVICES
|
***
|
4
|
Clause 16 : TRAINING
AND TRAINING AIDS
|
|
4.1
|
The
Parties agree to delete clause 16.3.5.1 of the AGTA in its entirety and
replace them with the following:
|
QUOTE
|
|
***
|
UNQUOTE
|
4.2
|
The
Parties agree to delete clause 16.3.5.2 of the AGTA in its entirety and
replace them with the following:
|
QUOTE
|
|
***
|
|
|
UNQUOTE
|
|
4.3
|
The
Parties agree to delete clause 16.3.5.3 of the AGTA in its entirety and
replace them with the following:
|
QUOTE
***
UNQUOTE
|
4.4
|
The
Parties agree to delete clauses 16.4.4.3 of the AGTA in its entirety and
replace them with the following:
|
QUOTE
***
UNQUOTE
|
AGTA
CSN 2009
|
LA
2
|
Page
3/5
|
|
XX0000000
|
LETTER AGREEMENT
2
|
4.5
|
The
Parties agree to delete clause 16.5.2.2 of the AGTA in its entirety and
replace them with the
following:
|
QUOTE
***
UNQUOTE
|
4.6
|
***
|
|
5
|
EXIBIT H : MATERIAL
SUPPLY AND SERVICES
|
|
5.1
|
The
parties agree to delete the second paragraph of clause 3.3 and replace it
with the following:
|
QUOTE
***
UNQUOTE
|
6
|
Assignment
|
Notwithstanding
any other provision of this Letter Agreement, the AGTA or the Purchase
Agreement, this Letter Agreement and the rights and obligations of the Buyer
herein shall not be assigned or transferred in any manner, and any attempted
assignment or transfer in contravention of the provisions of this Clause shall
be void and of no force or effect.
|
7
|
Confidentiality
|
This
Letter Agreement (and its existence) or any data exchanged between the Buyer and
the Seller for the fulfilment of their respective obligations under this Letter
Agreement 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 auditors, legal or tax advisors for the purpose of implementation
hereof.
|
AGTA
CSN 2009
|
LA
2
|
Page
4/5
|
|
XX0000000
|
LETTER AGREEMENT
2
If the
foregoing correctly sets forth our understanding, please execute three (3)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
|
Agreed
and accepted,
|
Agreed
and accepted,
|
|
For
and on behalf of
|
For
and on behalf of
|
|
CHINA
SOUTHERN AIRLINES
|
AIRBUS
S.A.S.
|
|
COMPANY
LIMITED
|
|
|
Name
:
|
Name
:
|
|
Title
:
|
Title
:
|
|
Witnessed
and acknowledged,
|
|
|
For
and on behalf of
|
|
|
CHINA
SOUTHERN AIRLINES GROUP
|
|
|
IMPORT
AND EXPORT TRADING CORP., LTD.
|
|
|
Name
:
|
|
|
Title
:
|
|
|
AGTA
CSN 2009
|
LA
2
|
Page
5/5
|
|
XX0000000
|
